NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Indictments found and returned in the Superior Court Department on September 14 and 17, 2007, respectively.

The cases were tried before John A. Agostini, J., and a motion for a new trial was considered by him.

Lori H. Levinson for Kimberly A. White.

Ian Stone for Kenneth A. Luciano.

Karen L. Carlo, Assistant District Attorney, for the Commonwealth.

COHEN, J. In January, 2009, the defendants, Kenneth Luciano and Kimberly White, were tried before a jury on indictments for armed robbery, witness intimidation, and two counts each of assault and battery by means of a dangerous weapon. The jury acquitted the defendants of armed robbery and witness intimidation, but were deadlocked as to the remaining charges. Two months later a second jury trial was held before the same judge, at which time each defendant was convicted of two counts of assault and battery by means of a dangerous weapon. Before us are the defendants’ appeals from the judgments of conviction and from the denial of their motions for a new trial.

The defendants’ primary claim arises from the trial judge’s denial of their requests to obtain a transcript of the first trial for use in the second trial. While we agree that the transcript should have been made available to them, we conclude that, in the circumstances of this case, the defendants are not entitled to appellate relief. We further conclude that, as conceded by the Commonwealth, an omission in the judge’s instructions on joint venture requires that defendant White’s convictions of assault and battery by means of a dangerous weapon be reversed. In all other respects, we affirm.

Background. The Commonwealth introduced evidence from which the jury could find that, on August 22, 2007, White lured the victim, Donald Reynolds, to a designated location in Adams, Massachusetts, where he was beaten by Luciano and another man, Timothy Malloy. At one time or another, Malloy, Reynolds and Luciano all had been involved with White. Indeed, each of them had fathered a child with her. For some period prior to the beating incident, White had been living with Luciano. However, after discovering that Reynolds had won some money at a casino, she began to see him again and led him to believe that they were dating.

Reynolds had strong feelings for White. After learning that Luciano had fathered a child with another woman, Reynolds tried to use that fact to persuade White to reunite with him permanently. White told Reynolds that she would leave Luciano if Reynolds could corroborate the accusation. Reynolds therefore paid the other woman for a copy of papers containing test results establishing Luciano’s paternity.

On the day of the beating, Reynolds went with White to a shopping mall and spent thousands of dollars on her and her children. Within a few hours, however, Reynolds spotted White and her children in the company of Luciano at a McDonald’s “drive-thru.” A heated argument (but no violence) ensued between the two men.

That evening, White called Reynolds to tell him that what happened at McDonald’s was “stupid.” She also told him that she would like to confront Luciano with the paternity papers, but was afraid to do so herself. She informed Reynolds that if he gave the papers to Luciano, she would kiss him, announce that she would marry him, and they would “ride off” together. Later that night, she left several voice mail messages for Reynolds telling him that she was with Malloy and Luciano on Spring Street, and urging him to come over.

After listening to the messages, Reynolds went to Spring Street. When he arrived, White pointed him down an alley to a door, which (unbeknownst to Reynolds) was the entrance to Malloy’s residence. After Reynolds refused to walk down the alley, White went to the door and knocked on it. Reynolds then caught sight of Luciano hiding in the alley and walked towards him.

Reynolds and Luciano began to argue. As they did, Malloy came from somewhere to the left of Reynolds and began to beat him on the head with a large, heavy glass bottle. Luciano, who worked as a security guard, joined in the attack, using a long, black security flashlight to strike Reynolds. Eventually, White and Luciano departed together in White’s car, and Malloy, too, left the scene. Reynolds was left bleeding and lying on the ground until help arrived.

The theory of the defense was that the defendants had nothing to do with Reynolds’ beating and that, after being attacked by one or more other individuals, Reynolds accused the defendants because he was upset and angry that White was choosing Luciano over him.

Discussion. 1. Transcript. Immediately after the completion of the first trial, White, who previously had been found to be indigent, moved for funds to obtain the transcript of the prior proceedings, stating in her motion that “a certified copy of the transcript of the prior trial [was] necessary for her to properly prepare for the upcoming [re]trial.” The motion requested a hearing at the court’s earliest convenience and was accompanied by an affidavit of counsel attesting to White’s continued indigency and inability to pay for the transcript. The judge denied the motion without a hearing. As he later explained,2 his reason for denying the motion was that the “general, non-specific reason” offered by White was “insufficient to incur the expense and time necessary to obtain such transcript,” and because delaying the trial in order to obtain a transcript would have been “inconsistent with the rights of the defendants and the Commonwealth for timely adjudication of criminal matters.”

On the first day of the second trial, the transcript issue arose again. Immediately after the prosecutor’s direct examination of Reynolds, Luciano’s counsel orally moved that, if nothing else, Reynold’s testimony from the first trial should be transcribed over the weekend so that it could be used to impeach Reynolds during cross-examination on a particular detail of his direct testimony, i.e., that he was holding the paternity papers in his hand when he approached Luciano. The judge said that this would be impossible, and denied the request. Both defendants objected.

Requests by indigent defendants for funds to prepare their defense are governed by G. L. c. 261, §§ 27A-27G. Pertinent here, G. L. c. 261, § 27C(4), as amended by St. 1980, c. 539, § 7, provides: “If the court makes a finding of indigency, it shall not deny any request with respect to normal fees and costs, and it shall not deny any request with respect to extra fees and costs if it finds the document, service or object is reasonably necessary to assure the applicant as effective a prosecution, defense or appeal as he would have if he were financially able to pay. The court shall not deny any request without first holding a hearing thereon; and if there is an appeal pursuant to section twenty-seven D following a denial, the court shall, within three days, set forth its written findings and reasons justifying such denial, which document shall be part of the record on appeal.”3 (Emphasis supplied.)

As mandated by § 27C(4), White’s motion should not have been denied without a hearing. Indeed, this case well-illustrates the utility of such a requirement. As the record stands, the judge’s concerns about delay are unsubstantiated. A hearing could have shed light on the amount of time needed for production of the transcript, whether it was feasible to obtain the transcript on an expedited basis, and whether the defendants were willing to waive their rights to a speedy trial in order to secure the transcript before the retrial.4

Even more fundamentally, the denial of White’s motion on the ground that she failed to make a particularized showing of need was a violation of her constitutional right to equal protection, as established in Britt v. North Carolina, 404 U.S. 226 (1971). In that case, the United States Supreme Court concluded that State courts generally must provide indigent defendants with a free copy of the transcript of a mistrial for use in a subsequent trial without requiring the defendant to specify how the transcript might be useful. Id. at 228. As the Supreme Court observed, “even in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.” Ibid. Thus, to be consistent with the constitutional requirements discussed in Britt, the “reasonably necessary” standard of § 27C(4) generally must be deemed to be met whenever a defendant requests funds for the transcript of a prior mistrial, even if the defendant has not made a specific showing of the transcript’s utility.5

While it may be that the judge nevertheless had discretion to deny the mid-trial request of Luciano’s counsel for partial transcription because of its timing and the practical difficulties it presented, we need not decide the issue, because neither that ruling nor the judge’s ruling on White’s motion necessitates appellate relief. The only prejudice claimed by the defendants is their alleged inability to have impeached Reynolds on a minor detail — whether, when walking towards Luciano in the alley, he had the paternity papers in his hand, as he testified on direct examination.6 According to the defendants, if they had been able to show that Reynolds was not holding the papers as he went down the alley, his account of why he came to Spring Street would “not make any sense.” We think, however, that the defendants greatly exaggerate the value of establishing this discrepancy.

Whether Reynolds actually had the paternity papers in hand when he saw Luciano and walked towards him bore no relationship to the main issue in the case, which was whether the defendants were present and participated (as principal or joint venturer) in the beating.7 The proposed impeachment went only to the collateral issue of Reynolds’ general credibility. See Commonwealth v. Farley, 443 Mass. 740, 750-751 (2005). As to that issue, the defendants had at their disposal far more potent evidence that apparently did not persuade the jury to disbelieve Reynolds.8 Furthermore, even without the benefit of the transcript, Luciano’s counsel was able to draw on his memory of the prior trial to cross-examine Reynolds effectively on the paternity papers — eliciting an admission that Reynolds was uncertain and confused about whether he had them in his possession when he walked down the alley. In these circumstances, the failure to afford the defendants a transcript of the mistrial was inconsequential. Accordingly, even though the error was of constitutional dimension, it was harmless beyond a reasonable doubt.9 See generally Commonwealth v. Tague, 434 Mass. 510, 515-516 (2001).

2. Instructions on joint venture. It is not disputed that the judge’s final charge did not inform the jury that in order to find either of the defendants guilty of assault and battery by means of a dangerous weapon on a theory of joint venture, it was necessary for the Commonwealth to prove beyond a reasonable doubt that the defendant knew that his or her co-venturer was armed with a dangerous weapon.10 Because neither defendant objected at trial,11 we consider only whether the omission created a substantial risk of a miscarriage of justice. Commonwealth v. Redmond, 53 Mass. App. Ct. 1, 7 (2001).

As to defendant White, the Commonwealth concedes that her convictions cannot stand. After independent review, see Commonwealth v. McClary, 33 Mass. App. Ct. 678, 686 n.6 (1992), we conclude that the concession is appropriate. On the state of the evidence, the jury could have found that, although White laid a trap for Reynolds to be assaulted by Luciano and Malloy, she did not know that Luciano and Malloy had dangerous weapons. As to defendant Luciano, we discern no substantial risk of a miscarriage of justice resulting from the omitted instruction. There were two distinct charges against Luciano: a charge of “assault and battery by means of a dangerous weapon, to wit: a flashlight,” which was based upon his own actions; and a charge of “assault and battery by means of a dangerous weapon, to wit: a glass bottle,” which was based upon the actions of Luciano’s alleged co-venturer, Malloy. The evidence was that Malloy initiated the physical attack on Reynolds by coming at him from the left and striking him with the bottle, that Luciano immediately joined in by hitting Reynolds with a flashlight, and that Luciano and Malloy continued to strike Reynolds at the same time, using their respective weapons. In these circumstances, there was no real risk that the jury would have reached a different result had they been told expressly that they had to find beyond a reasonable doubt that Luciano knew that Malloy was armed. See Commonwealth v. Palmer, 59 Mass. App. Ct. 415, 426 (2003).12

3. Other issues. a. Police officer testimony. Although he did not object below, defendant Luciano now claims that the investigating police officer gave what amounted to an improper expert opinion as to guilt. The officer testified that after speaking with Reynolds as he lay bleeding in the road and after making observations at the scene, he notified other police officers that there was “probable cause to arrest” two individuals: Luciano and Malloy. We disagree that this testimony was an impermissible comment on the defendant’s guilt; it was an explanation of the officer’s actions, elicited to counteract the defendants’ claim from the inception of the trial that the police investigation was inadequate and misdirected. See Commonwealth v. Lodge, 431 Mass. 461, 467 (2000); Commonwealth v. Avila, 454 Mass. 744, 753-754 (2009); Commonwealth v. Flanagan, 20 Mass. App. Ct. 472, 476 n.2 (1985).

In any event, no substantial risk of a miscarriage of justice resulted from the admission of this testimony. The officer’s determination that there was probable cause to arrest was implicit in the arrest itself. Furthermore, in view of the judge’s thorough instructions as to the jury’s function, the presumption of innocence, and the Commonwealth’s obligation to prove the defendants’ guilt beyond a reasonable doubt, we are confident that the jury would not have understood the officer’s testimony that, at the time, he believed that the lesser probable cause standard had been met, as supplanting their responsibility as fact-finders or as diminishing the Commonwealth’s burden of proof.

b. Ineffective assistance of counsel. We have reviewed the defendants’ various claims of ineffective assistance and conclude that they fall short under the Saferian standard. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The unpreserved errors already discussed fare no better when recast in terms of ineffective assistance. See Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002). The evidentiary objections that the defendants claim their trial counsel should have made most likely would have been futile or would have made no material difference in the case. White’s trial counsel cannot be faulted for deciding not to mount a weak alibi defense that did not account for the time when the crime occurred; nor was he ineffective in failing to call Malloy as a witness, where Malloy was asserting his Fifth Amendment privilege. Notably, White’s claims are unsupported by any affidavits from trial counsel, Malloy, or herself. The motion judge, who also was the trial judge, was entitled to reject them.

4. Conclusion. Defendant White’s two convictions of assault and battery by means of a dangerous weapon are reversed and the case remanded to the trial court for further proceedings.13 The judgments of conviction as to defendant Luciano are affirmed, as is the denial of his motion for a new trial.

2The judge’s explanation appears in his post-trial order denying the defendants’ motions for stay of execution of sentence.

3It is not contended by the Commonwealth that G. L. c. 261, § 27D, is the exclusive route by which the applicant may obtain appellate review of the denial of a request for funds.

4We are aware that, when this case was pending in the trial court, transcript production was not subject to time standards as it is now. See Administrative Order 09-2, issued on December 29, 2009, by the Chief Justice for Administration, establishing a time standard of 120 days for the production of transcripts ordered on or after January 1, 2010, in both civil and criminal cases. We also are aware that before time standards, long delays in transcript production were not uncommon. For whatever reason, however, the transcript of the defendants’ second trial ultimately was able to be produced very quickly. The docket reflects that, in March, 2009, soon after the conclusion of the retrial, the transcript of the second trial was ordered and prepared in only one week.

5Commonwealth v. Souza, 397 Mass. 236, 242 (1986), relied upon by the Commonwealth, does not mandate a different result. Without acknowledging Britt, Souza affirmed the denial of the defendant’s motion for a continuance pending appeal of the denial of his motion for a transcript of his prior bench trial. To the extent that there is tension between the constitutional requirements explicated in Britt and the manner in which Souza construed G. L. c. 261, § 27C(4) in the factual context of that case, the reasoning of the United States Supreme Court is controlling in the circumstances presented here.

6We do not understand the defendants to argue that the transcript was needed for discovery purposes. Here, any such contention would be unavailing where the defendants were represented at the second trial by the same attorneys who appeared for them at the first trial, and the trials were held only two months apart. See Commonwealth v. MacDonald (No. 2), 368 Mass. 403, 405-407 (1975).

7For example, there was no claim of self-defense, where Reynolds’ failure to have the paternity papers in hand may have supported the inference that he had gone to Spring Street not to fulfill White’s request, but to pick a fight with the defendants.

8In addition to developing the theme that Reynolds was a jilted lover with a motive to lie, the defendants were able to point to other indicia of Reynolds’ unreliability as a witness, including his criminal record, and evidence that he suffered from mental difficulties.

9There is no merit to the defendants’ contention that denying an indigent defendant a transcript of a mistrial is a structural error that mandates reversal regardless of the existence of prejudice. Notably, in Britt, despite the trial court’s constitutional error in denying the defendant’s motion for a transcript, the Supreme Court nevertheless affirmed his conviction because he had an informal alternative available to him that was substantially equivalent to a transcript. Britt v. North Carolina, supra at 228. See also Commonwealth v. MacDonald (No. 2), supra at 407.

10This case was tried prior to the Supreme Judicial Court’s decision in Commonwealth v. Zanetti, 454 Mass. 449 (2009), prospectively adopting, for use in jury instructions, the language of aiding and abetting rather than joint venture. Id. at 466-467 & n.2.

11The record does not bear out the defendants’ claim that they preserved their rights on this issue when, during deliberations, the jury asked for clarification as to “whether joint venture pertains to just the weapons or the parties involved.” To the contrary, after discussion with the judge, both defense counsel expressly stated that they had “no objection” to the judge’s proposed course of action, which was simply to state that joint venture pertains to the parties as reflected in his original instructions, and that if the jury had any additional questions they should feel free to send them out.

12Luciano’s alternative argument, that his two convictions are duplicative and subject him to double jeopardy, also is without merit. There were two distinct charges against Luciano involving different actors and different weapons. Luciano properly could be punished as to both.

13The parties’ positions as to the relief that may be granted in the trial court are not adequately briefed, and, therefore, we do not address them.

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

KATZMANN, J. The corporate defendant, Olympic Adhesives, Inc. (Olympic), and individual defendants John E. Murray, Jr., Stephen P. Hopkins, and Paul C. Ryan, controlling shareholders of Olympic,2 appeal from a Superior Court judgment in favor of the plaintiff, Merek Rubin, a minority shareholder and Olympic’s former corporate counsel — who had acquired stock in Olympic as partial payment for legal services rendered to the individual defendants — on his claim that the individual defendants paid themselves excessive compensation and deprived Rubin of his share in Olympic’s profits. Following a jury-waived trial, the judge ordered the individual defendants to reimburse Olympic for amounts over and above what he determined to be their reasonable compensation for the years 1995 through 2005, to be redistributed among all the shareholders according to their ownership interests. We affirm.

We summarize the facts from the judge’s findings in his August 17, 2005, memorandum of decision and order, which were fully supported by the record, and which we augment somewhat, here and in our discussion, from the undisputed evidence in the record. Olympic is a closely held Massachusetts corporation, formed by the individual defendants in March, 1975, to manufacture and distribute industrial adhesives. Originally, the individual defendants were Olympic’s sole shareholders; they are also Olympic officers, directors, and employees. Prior to 1975, the three individual defendants worked for Nicholson and Company, Inc. (Nicholson), an adhesive company controlled by John Murray, Sr. (Murray, Sr.), who is Murray’s father and Hopkins’s grandfather. Murray and Hopkins were also Nicholson shareholders. In 1975, a dispute between Murray, Sr., and the individual defendants, concerning voting rights and control of Nicholson, prompted the individual defendants to leave Nicholson and form Olympic. Upon their departure, Murray, Sr., sued the individual defendants for breach of fiduciary duty, along with other claims.

Rubin is an attorney specializing in corporate and tax matters. Prior to 1975, he had performed estate planning work for both Hopkins and Murray. When the individual defendants left Nicholson, they sought Rubin’s advice in forming Olympic and in defending the Nicholson lawsuit. Rubin recommended they hire Edward Barshak, a trial attorney. Barshak successfully defeated Nicholson’s motion for a preliminary injunction against Olympic. Rubin conducted settlement negotiations with Nicholson over several months, obtaining dismissal of the case and promissory notes for the purchase of Murray’s and Hopkins’s shares in Nicholson. Rubin spent approximately 500 hours on the Olympic start-up and the Nicholson litigation and settlement, and the individual defendants were enormously grateful. They had difficulty paying Rubin for his legal services, however, having invested their cash in the start-up of Olympic.

In October, 1975, Rubin met with the individual defendants to discuss his unpaid fee. At that meeting, Rubin proposed that they pay his fee in three parts: a cash payment of $40,000, a percentage of the notes from Nicholson to Murray and Hopkins to purchase their Nicholson shares, and nonvoting stock equal to ten percent in Olympic.3 Rubin suggested the individual defendants consult another attorney to review his fee proposal for fairness. They chose not to, as they trusted Rubin and were satisfied with the proposal. At that time, Olympic’s accountant valued Rubin’s proposed ten percent interest in Olympic at $2,750.

Rubin drafted the necessary documents to create a new class of nonvoting stock, designated class B common stock, identical in all respects to the individual defendants’ class A common stock except for its nonvoting status. In particular, Olympic’s articles of organization were amended to provide, in relevant part, the following:

“Shares of Class A Common Stock and Class B Common Stock shall be identical in all respects, except that shares of Class B Common Stock shall not possess or enjoy any voting rights or powers, and no holder of Class B Common Stock shall be required to receive notice of any meetings of stockholders of the corporation. Holders of Class A Common Stock shall have exclusive voting power and shall be entitled to one vote in respect of each share of Class A Stock issued and outstanding.”

At no time did the parties indicate that nonvoting stock was not entitled to receive dividends, if and when declared. The articles of amendment were approved by the individual defendants.4

In 1976, Olympic adopted an employee profit-sharing plan, setting aside twenty percent of the net operating income, before taxes, for distribution. In 1977, Olympic began to make a profit, and Rubin advised the individual defendants to distribute the profit among themselves, as a merit bonus, to avoid paying additional taxes under Olympic’s C-corporation tax status. As a result, Murray received a bonus that year of $5,000, and Hopkins and Ryan each received $4,000. The individual defendants continued to declare bonuses to themselves thereafter.

In 1978, Rubin encountered personal financial difficulties and borrowed $20,000 from Olympic, pledging his Olympic stock as security. Rubin paid interest on the note but did not pay the note when due, and Olympic extended it several times. In 1994, Olympic forgave the note because of the long-standing relationship between the individual defendants and Rubin. Rubin retained his shares in Olympic.

In April, 1981, Murray replaced Rubin with new general counsel. Murray had been tried for and convicted of Federal customs violations in 1980, and faced with the possibility that Olympic’s assets might be seized, he decided that Olympic needed the services of a law firm with broader experience. As a result, Rubin performed no legal services for Olympic after 1981, though he continued to handle personal legal matters for Hopkins and Ryan. Each year Rubin received Olympic’s financial statements and was invited to the annual shareholder meetings. Rubin attended occasionally, and he continued to see the individual defendants socially.

Olympic continued to do well. In 1990, Olympic adopted a restated profit-sharing plan, whereby one-third of the net operating income went to a fund that would be distributed to employees, including the individual defendants. Twice a year, after calculating amounts for the profit-sharing plan, the individual defendants also paid themselves what they referred to as additional compensation, representing what the judge described as “a very high percentage” of Olympic’s net profits.5 Between 1990 and 2005, this additional compensation totaled $14,925,000, which was, again, in addition to the individual defendants’ salaries and their share of the employee profit-sharing fund, and which the judge found was allocated among the defendants according to their stock ownership.

On December 11, 1998, Rubin wrote to Murray, complaining that the individual defendants “were effectively taking disguised dividends from the company with no pro rata distributions made to [him].” At that point, Rubin’s accountant was permitted to review Olympic’s records and tax returns, and on January 26, 2000, Rubin’s attorney made a formal demand of Olympic’s board of directors pursuant to Mass.R.Civ.P. 23.1, 365 Mass. 768 (1974).

Rubin filed this action on March 15, 2000, claiming individually and derivatively that the three individual defendants had paid themselves excessive compensation, in violation of their fiduciary duty to Rubin as a minority shareholder.6 The case was tried over nine days and the judge ruled for Rubin. The judge ordered the three individual defendants to repay to Olympic $5,806,000, the amount he found to be in excess of their reasonable compensation for the years 1995 to 2005, together with interest, to be redistributed among all the Olympic shareholders after taxes. The judge further ordered the three individual defendants to repay Olympic for their legal fees, which Olympic had paid on their behalf.

The defendants appeal. Their arguments are directed principally at whether Rubin was entitled, under the 1975 fee agreement, to challenge the individual defendants’ compensation, and whether the remedy ordered by the judge was supported by the evidence and the law.

The 1975 fee agreement. 1. Attorney-client transactions. The defendants first argue that Rubin has no right, either as the individual defendants’ former attorney or as an Olympic shareholder, to challenge the individual defendants’ compensation. They maintain that the 1975 fee agreement should not be enforced because Rubin breached his fiduciary duty, as the defendants’ attorney, by failing to disclose his potential conflict of interest between his duties as their attorney and his rights as a minority shareholder in Olympic. The judge found that Rubin’s disclosure was adequate and that the transaction was fair.7

In analyzing whether the fee arrangement should be enforced, the judge was guided by the principles set out in Pollock v. Marshall, 391 Mass. 543, 555-559 (1984). In that case, the court upheld the attorney-client business transaction even though the attorney never advised his client to seek independent legal counsel, because the court concluded that the presumed influence of an attorney over the client in such transactions may be “neutralized by independent advice given to the client or by some other means.” Id. at 556-557, quoting from Barnum v. Fay, 320 Mass. 177, 181 (1946). See Widett & Widett v. Snyder, 392 Mass. 778, 781-782 (1984) (applying Pollock v. Marshall to case where client gave attorney mortgage to secure amounts due for legal services rendered).

The judge here carefully considered the evidence bearing on Rubin’s disclosure, the individual defendants’ understanding of the transaction, and the nature of the transaction. With respect to Rubin’s disclosure, the judge credited Rubin’s testimony that he explained to the individual defendants that his stock would be the same as theirs, except that he would not have the right to vote, and that they should obtain independent legal advice regarding the transaction’s fairness. The judge further credited Rubin’s testimony that the individual defendants were satisfied with the proposal and chose not to seek independent legal advice.8

The judge found that Rubin’s disclosure was adequate in light of the experience of the defendants and the nature of the transaction. Specifically, he found that “[t]he plaintiff did not fail to disclose anything of significance which the defendants, as intelligent and experienced businessmen, did not already know with respect to their obligations as shareholders.” It was appropriate that the judge take into account the knowledge and sophistication of the individual defendants concerning shareholder rights and obligations in assessing the adequacy of Rubin’s disclosure. Pollock v. Marshall, supra at 557. See, e.g., Widett & Widett v. Snyder, 392 Mass. at 782; McCray v. Weinberg, 4 Mass. App. Ct. 13, 18 (1976). See generally Cambridge Trust Co. v. Hanify & King Professional Corp., 430 Mass. 472, 477 (1999); Graves v. Hutchinson, 39 Mass. App. Ct. 634, 643-644 (1996). Compare Israel v. Sommer, 292 Mass. 113, 124 (1935) (no finding of fact that eighty year old client knew of and understood all aspects of trust agreement giving indefinite rights to his attorney). Similarly, the judge properly considered that the individual defendants previously had been minority shareholders in Nicholson.9 Our review of the record revealed ample support for the judge’s finding that the individual defendants were well-versed in the basic rights and duties of shareholders in close corporations.

In light of the judge’s findings regarding the individual defendants’ knowledge and experience in corporate matters, we think he properly rejected the defendants’ argument that Rubin was required to disclose to the individual defendants that it would be a breach of their fiduciary duty if they paid nearly all of the corporation’s profits to themselves and paid Rubin nothing, and that he could sue them for such breach. Murray, Olympic’s president and treasurer, specifically testified that he knew that the majority owed minority and nonemployee shareholders a fiduciary duty, that employee shareholder compensation had to be fair to nonemployee shareholders, that a minority shareholder had a right to share in the profits, and that this was true whether the shares were voting or nonvoting and whether the shareholder was an employee of the corporation or a nonemployee. The judge reasonably found from the evidence that the individual defendants possessed the requisite knowledge and sophistication to understand the “basic proposition that a shareholder is entitled to share in the profitability and value of the enterprise.” See generally Cambridge Trust Co. v. Hanify & King Professional Corp., 430 Mass. at 477 (in assessing sophistication of clients in understanding attorney’s disclosure regarding contingency fee agreement, judge could consider what client knew or should have known).

The defendants urge us to rely on Goldman v. Kane, 3 Mass. App. Ct. 336, 341-342 (1975), to hold Rubin to more exacting disclosure requirements. But in that case, the transaction itself was found to be so fundamentally unfair that the attorney’s disclosure, which included his own recommendation against the deal, could not redeem the arrangement. The same was found in Israel v. Sommer, 292 Mass. at 123-124, again involving a transaction so fundamentally unfair that the attorney’s explanation of the deal to the client did not suffice. See Duggan v. Gonsalves, 65 Mass. App. Ct. 250, 257-258 (2005) (fundamentally unsound transaction of attorney representing clients in foreclosure proceeding and then purchasing their property for himself).

Here, in contrast, the judge found the transaction to be fair, and the evidence fully supported that view. He found that Rubin was entitled to be paid for the legal services he had provided, that the agreed-upon value of the stock at the time of transfer, along with the cash payment and Nicholson notes, represented a fair payment for his services, and that the individual defendants understood and were pleased with the option to pay part of Rubin’s fee in stock rather than cash. See, e.g. Pollock v. Marshall, 391 Mass. at 557 (“the transactions were found, as a matter of fact, not to have involved any overreaching or undue influence by the plaintiffs”). Furthermore, the judge observed that nothing in the law prohibited the payment of legal fees, for services rendered, in shares of stock, and the defendants do not contest the point.10 See Mass. Bar Assn. Comm. on Professional Ethics, Op. No. 76-16 (1976) (“It is not improper for a lawyer to accept shares of stock in a corporation as compensation” for legal services). From the testimony, it was plain that all parties understood, at the time of the stock transfer to Rubin, the risk to Rubin that the stock might be worthless, and all parties understood that Rubin, as a minority stockholder, would be entitled to share in the profits should the venture succeed.

Based on this record, we discern no fundamental unfairness in the transaction involving the transfer to Rubin of ten percent of the stock in Olympic as partial payment for his legal services. We conclude that the judge appropriately applied the factors set out in Pollack v. Marshall, supra, and that the record supported his conclusion that the 1975 fee agreement was arrived at fairly and equitably.

2. Second look for reasonableness. The defendants further argue that the 1975 fee agreement should be subject to a second look for reasonableness. In particular, they urge that we look to the current value of the stock in determining what was a reasonable fee for legal services performed and completed in 1975. However, the policy arguments put forth by the defendants that permit judicial re-examination of contingent fee agreements, or fee agreements that involve ongoing legal services, are not implicated here. See, e.g., McInerney v. Massasoit Greyhound Assn., Inc., 359 Mass. 339, 352 (1971); Holmes v. Loveless,

122 Wash. App. 470, 473 (2004).

Contingent fee agreements, because the outcome and the extent of the legal services are unknown at the time of the bargain, must comply with certain strict requirements to ensure fairness. See, e.g., R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 61 Mass. App Ct. 92, 96-100 (2004).11 Because contingency fees are negotiated at a time of significant uncertainty, and with the possibility that the client lacks true bargaining power, contingent fee agreements may be reviewed for reasonableness once the attorney’s services are completed and the outcome known. See id. at 101 n.10. See also Gagnon v. Shoblom, 409 Mass. 63, 67 (1991).

Those concerns are not present here. Rubin was seeking payment for work already performed at the time the parties entered into the 1975 fee agreement, and thus the hours expended and the results achieved were known. All parties agreed to the amount to be paid12 and to the value of the Olympic shares as part of that payment, and the judge found those amounts to be reasonable for the services provided. Moreover, as the record makes clear, these individual defendants were not naive and did not lack in bargaining power. Contrast McInerney v. Massasoit Greyhound Assn., Inc., 359 Mass. at 352 (contingent fee agreement requiring wife in divorce action to pay her attorney monthly stipend for the rest of her life, and to transfer percentage of whatever stock her attorney recovered in divorce action, held patently unfair). See also Holmes v. Loveless, 122 Wash. App. at 481 (fee agreement provided attorneys receive five percent of profits from client’s business in exchange for ongoing legal services, regardless of amount of services actually provided, without end date for payments, and without establishing ownership interest for attorneys).

Finally, we note that contrary to the “second look for reasonableness” urged here by the defendants, various authorities support the valuation of stock issued in lieu of legal fees at the time that it is issued. ABA Standing Comm. on Ethics and Professional Responsibility, Formal Op. 00-418 (July 7, 2000); Association of the Bar of the City of N.Y., Formal Opinion 2000-3; Klein, No Fool for a Client: The Finance and Incentives Behind Stock-Based Compensation for Corporate Attorneys, 1999 Colum. Bus. L. Rev. 330. Any windfall that the attorney may receive from valuing the asset at the time that the fee is set is a “reward [that] stems from the investment risk accepted.” Association of the Bar of the City of N.Y., Formal Opinion 2000-3. As a practical matter, adopting a “second look” at stock issued in lieu of legal fees is problematic because there is no natural point at which to review the value of the stock. By contrast, an approach that evaluates the stock at the time that it was issued is sensible and practicable.

While it can be very difficult to accurately value a start-up business, Rubin made efforts to determine the value of the stock that he was requesting in lieu of fees. In order to place a monetary value on the stock, he sought the advice of Olympic’s accountant, who indicated that the defendants had contributed $25,000 for 100 percent interest, six months earlier, so therefore he thought it made sense to value Rubin’s ten percent interest at $2,750. The defendants do not challenge the fact that $2,750 was a fair assessment of the value of a ten percent interest in Olympic in 1975.

The judge here found that the cash portion of Rubin’s compensation ($40,000) was inadequate to “compensate the plaintiff fully and fairly” and that because of this Rubin asked for an additional ten percent stock interest. Recognizing that the “value of Olympic’s stock at the time of issuance was highly problematical” and “[t]he enterprise could easily have failed,” the judge found that “[i]t cannot be said that the fee was excessive.” We are presented with no persuasive argument to disturb that conclusion.

3. Interpreting the articles of amendment. We also are unpersuaded by the defendants’ argument that the articles of amendment, specifically the language that “shares of Class B Common Stock shall not possess or enjoy any voting rights or powers,” should be interpreted to deny Rubin not only voting rights, but all other powers associated with stock ownership. According to the defendants, the language means that Rubin has no powers in connection with his stock, and is not entitled to sue or to share in the profits unless and until the company was sold. No reasonable reading of the phrase, taken in context, permits that interpretation.

The parties agree that Olympic’s corporate documents are to be construed according to principles of contract interpretation. We rely on the following: “In interpreting a contract, ‘[t]he objective is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose.'” Downer & Co., LLC v. STI Holding, Inc., 76 Mass. App. Ct. 786, 792 (2010), quoting from Sullivan v. Southland Life Ins. Co., 67 Mass. App. Ct. 439, 442 (2006). “The words of a contract must be considered in the context of the entire contract rather than in isolation.” General Convention of the New Jerusalem in the United States of Am., Inc. v. MacKenzie, 449 Mass. 832, 835 (2007). Starr v. Fordham, 420 Mass. 178, 190 (1995). See MacDonald v. Hawker, 11 Mass. App. Ct. 869, 873 (1981), quoting from Crimmons & Pierce Co. v. Kidder Peabody Acceptance Corp., 282 Mass. 367, 375 (1933) (“The intent of the parties must be gathered from a fair construction of the contract as a whole and not by special emphasis upon any one part”).

Viewing the contested term “voting rights or powers” in context, we observe that both the preceding clause, plainly stating that Rubin’s class B shares are “identical in all respects” as the individual defendants’ shares, and the final sentence, employing the phrase “voting powers,” make clear that “voting” modifies both “rights or powers.” See, e.g., Downer & Co., LLC v. STI Holding, Inc., 76 Mass. App. Ct. at 792 (plaintiff’s interpretation of contested language only possible if taken out of context and read in isolation).13 The only reasonable interpretation in this context is that the term “voting rights or powers” refers to the nonvoting character of Rubin’s shares. Accordingly, we hold that the amended articles of organization neither prohibit Rubin’s challenge to excessive compensation nor bar his right to share in the profits.

Remedy. 1. Evidentiary support for reasonable compensation. The judge found that the individual defendants’ compensation for the years at issue was unreasonably high, noting that from 1995 to 2005, they paid themselves nearly all the profits that remained after payments under the employee profit sharing plan. See, e.g., Crowley v. Communications for Hosps., Inc., 30 Mass. App. Ct. 751, 756-757 (1991) (compensation to majority shareholders of large percentage of corporation’s profits deprived minority shareholders of their equity). Nevertheless, he rejected Rubin’s argument that all amounts over and above the individual defendants’ salaries and profit-sharing payments were excessive. The judge pointed out that the individual defendants had set their salaries at relatively low levels and that they were entitled to reasonable bonuses in addition to their other compensation. Accordingly, the judge undertook to determine the reasonable compensation for top executives in a firm of Olympic’s size and character, in order to determine the excess amounts that should be returned to the corporation. The defendants claim that the judge relied on speculative and insufficient evidence in determining what amounts constituted their reasonable compensation for the relevant years.

“The question of what is reasonable compensation for the performance of executive duties by an officer of a corporation is one of fact.” Black v. Parker Mfg. Co., 329 Mass. 105, 116 (1952).14 See Crowley v. Communications for Hosps., Inc., supra at 756. As such, its resolution is subject to review under the clearly erroneous standard. See generally Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 541 n.47 (1997) (“a finding of valuation is subject to review under the ‘clearly erroneous’ standard, and we will accept a judge’s findings based on the evidence or a reasonable inference from it”); Haskell v. Versyss Liquidating Trust, 75 Mass. App. Ct. 120, 125-126 (2009). Among appropriate considerations for the judge, “[a] salary must bear a reasonable relation to the officer’s ability and to the quantity and quality of the services he renders.” Black v. Parker Mfg. Co., 329 Mass. at 116. In addition, compensation may be based to some extent on the profits resulting from their efforts. Id. at 117.

It was within the judge’s discretion to accept the testimony of Rubin’s expert financial analyst, Howard Gordon, regarding the individual defendants’ reasonable compensation and the proper factors to consider in light of salaries paid at comparable companies. Sugarman v. Sugarman, 797 F.2d 3, 11 (1st Cir. 1986). Gordon was qualified as an expert, without objection, on the subject of fair owner compensation in closely held businesses. According to his testimony, he relied on two authoritative publications utilized in the business valuation industry to assess officer compensation: the Officers Compensation Survey and the Risk Management Associates Statement Studies. Gordon identified certain factors to assist in determining the defendants’ reasonable compensation, including the individual defendants’ roles in Olympic’s successful thirty-year history, the growth in Olympic’s annual sales, Olympic’s gross margin and profitability (were it not for the profit taken by the defendants as additional compensation), and the special skills of the individual defendants that likely contributed to Olympic’s success.

The judge relied on Gordon’s analysis but did not adopt Gordon’s proposed salary figures. Gordon opined that the individual defendants’ compensation was more than twice what it should have been, based on comparable material manufacturing companies and officers’ pay. The judge, relying on evidence that officer compensation fell between approximately four percent to seven percent of net sales for comparable companies for the years 2001 to 2004, and adding his own success premium based on the individual defendants’ significant abilities and contributions, determined that fair and reasonable compensation for them was approximately ten percent of Olympic’s average annual net sales. See, e.g., Sugarman v. Sugarman, 797 F.2d at 13. Determining reasonable compensation based on a percentage of net profits, with his own adjustments for performance, was a permissible exercise of the judge’s discretion. Black v. Parker Mfg. Co., 329 Mass. at 117. This amount the judge then confirmed with evidence of the average compensation for top officers in comparable firms for 2001 to 2004. See, e.g., Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 483 (1991) (judge’s award fell within the range of values to which the parties’ experts testified).15

The judge was not required to credit the testimony of the defendants’ expert, Thomas Quinn, that the additional compensation paid to the individual defendants reflected reasonable salaries for their positions. See Haskell v. Versyss Liquidating Trust, 75 Mass. App. Ct. at 125-126. Quinn relied on the fact that the Internal Revenue Service had not audited Olympic’s tax returns, as he would expect had the additional compensation been unreasonable; it was for the judge to determine what weight, if any, to accord the point. See Sugarman v. Sugarman, 797 F.2d at 11. The same is true as to Quinn’s testimony that the duties undertaken by the individual defendants and the success of Olympic supported their compensation. Ibid. The judge could appropriately take into account that Murray, Olympic’s president and treasurer, was vague in identifying a basis for determining distribution of additional compensation among the individual defendants and, when pressed by the judge, testified that Olympic used no numerical factors to set or apportion the additional compensation. The judge found it significant that amounts paid to the individual defendants in additional compensation corresponded to the percentage of their stock ownership, rather than to any enumerated performance factors bearing on the distribution, and he was entitled to reject Murray’s explanation that the correlation was just a coincidence.

“[I]t was appropriate for the court to question the reasonableness of [the defendants’] salary under these circumstances and to accept expert testimony regarding the excessiveness of that salary.” Sugarman v. Sugarman, 797 F.2d at 12. The judge was entitled to make a reasoned choice from the differing opinions of the experts. Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 864-865 (1989). We see no error in the judge’s reliance on portions of Rubin’s expert’s testimony in making his own determination of reasonableness, see Haskell v. Versyss Liquidating Trust, 75 Mass. App. Ct. at 127, nor do we think the evidence relied upon was insufficient or speculative. See, e.g., Analogic Corp. v. Board of Assessors of Peabody, 45 Mass. App. Ct. 605, 608 (1998) (opinion of appraiser who “was familiar with the subject property, the comparables he considered, and the economic conditions of the area” did not constitute impermissible guesswork). Any weaknesses identified by the defendants in Gordon’s analysis or the information upon which his opinion relied went to the weight of his testimony and was a matter for the judge to decide. See Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208, 213-214 (2003); Peterson v. Board of Assessors of Boston, 62 Mass. App. Ct. 428, 432-433 (2004).

We conclude that the judge’s findings as to amounts constituting reasonable compensation for the individual defendants were based on sufficient evidence and were not clearly erroneous. See Fechtor v. Fechtor, 26 Mass. App. Ct. at 863; Haskell v. Versyss Liquidating Trust, 75 Mass. App. Ct. at 129.

2. Derivative versus direct remedy. The defendants also challenge the derivative nature of the remedy. The law is clear, however, that an action is derivative rather than direct when the claim is for excessive compensation, and that claims against officers for excessive compensation must be asserted through the corporation. Black v. Parker Mfg. Co., 329 Mass. at 118. Bessette v. Bessette, 385 Mass. 806, 809 (1982). See Diamond v. Pappathanasi, 78 Mass. App. Ct. 77, 87-88 (2010) (claims against controlling shareholders for dissipating corporate assets by paying themselves impermissible fees properly characterized as derivative). The judge found that the excessive compensation paid to the individual defendants constituted a disguised dividend that should have been distributed among all the shareholders.

The defendants complain that the remedy ordered by the judge will work a hardship, especially when other remedies were available that would accomplish the same end. “Courts have broad equitable powers to fashion remedies for breaches of fiduciary duty in a close corporation . . . and their choice of a particular remedy is reviewed for abuse of discretion.” Brodie v. Jordan, 447 Mass. 866, 871 (2006). A remedy similar to the judgment here was imposed by this court in Crowley v. Communications for Hosps., Inc., 30 Mass. App. Ct. at 766-768, where we rejected the trial judge’s order for direct relief to the plaintiff for wrongs done to the corporation. “If the defendants have denied the plaintiff any return on [his] investment while ‘drain[ing] off the corporation’s earnings’ for themselves, Donahue v. Rodd Electrotype Co. of New England, Inc., 367 Mass. 578, 588-589 (1975), the judge may consider, among other possibilities, the propriety of compelling the declaration of dividends.” Brodie v. Jordan, 447 Mass. at 874. The defendants have not persuaded us that the judge abused his discretion in the remedy ordered here.16

3. Statute of limitations. The judge permitted Rubin to recover his share of the excess compensation as far back as 1995, relying on the six-year statute of limitations for contract actions. We see no error in the judge’s reliance on Von Arnim v. American Tube Works, 188 Mass. 515, 517-520 (1905) (suit to recover corporate officers’ excessive salaries may be brought as an action for money had and received), and Kagan v. Levenson, 334 Mass. 100, 103 (1956) (six-year statute of limitations for contract actions applied to suit to recover proceeds from sale of corporate assets, as one for money had and received), in treating Rubin’s claim as one for money had and received and applying the six-year statute of limitations.17

The defendants rely, instead, on Woodcock v. American Inv. Co., 376 Mass. 169, 173-175 (1978), which held that a derivative claim for conversion of corporate funds was a tort action governed by the three-year statute of limitations. But the Supreme Judicial Court instructed that “[w]e start with an analysis of precisely what alleged wrongs to the company lie at the base of the plaintiffs’ derivative action” to determine the relevant statute of limitations. Id. at 173. See Kirley v. Kirley, 25 Mass. App. Ct. 651, 653 (1988) (though “the line between the two types of claims for these purposes is not sharp,” minority shareholder’s freeze-out claim for wrongful termination and depletion of corporate assets sounded in tort).

Here, the wrong alleged by Rubin was that the individual defendants paid themselves disguised dividends in the form of excessive compensation, depriving Rubin of his right to share in the distribution of profits pursuant to his ownership of stock. We recently observed in Diamond v. Pappathanasi, 78 Mass. App. Ct. at 97 n.32, that there was no error in applying the six-year contract statute of limitations to a derivative claim to recover funds that were paid to a director in violation of the articles of incorporation. That the defendants themselves asserted throughout this litigation that Rubin’s right to profits was contractual, to be determined in accordance with Olympic’s articles of organization, lends further support to the judge’s ruling that the statute of limitations consistent with the contractual basis for Rubin’s claim should apply. See, e.g., Lewis v. H.P. Hood & Sons, Inc., 331 Mass. 670, 676 (1954) (shareholder “gets what he bargains for” under articles of incorporation).

4. Attorney’s fees. Olympic’s articles of incorporation prohibit the corporation from paying the attorney’s fees of an officer or director where they “have not acted in good faith in the reasonable belief that his action was in the best interests of the corporation.” The defendants complain that the judge’s order that the individual defendants repay Olympic amounts paid for their attorney’s fees in this action was not supported by the requisite finding of bad faith. But the judge specifically ruled that the individual defendants owed Rubin a fiduciary duty of good faith and loyalty, and that they breached that duty by paying themselves excessive compensation. “The fairness of such salaries is open to examination . . . for the benefit of the corporation.” Bessette v. Bessette, 385 Mass. at 809, quoting from Stratis v. Anderson, 254 Mass. 536, 539 (1926). See Crowley v. Communications for Hosps., Inc., 30 Mass. App. Ct. at 758-759 (excessive compensation that “deprives the company, and therefore its stockholders, of all opportunities for growth in net worth, serves no legitimate business purpose”). From this, we are satisfied that the judge’s finding that the individual defendants breached their fiduciary duty of good faith equated to a finding of lack of good faith regarding Olympic’s best interests and supported the repayment of the individual defendants’ legal fees to Olympic. Cf. Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. at 561-562. See Astra USA, Inc. v. Bildman, 455 Mass. 116, 141 n.38 (2009), cert. denied, 130 S. Ct. 3276 (2010).

2We refer herein to Murray, Hopkins, and Ryan collectively as the individual defendants; to Olympic Adhesives, Inc., the corporate defendant, as Olympic; and to the individual defendants and Olympic together as the defendants.

3It was understood that the cash payments, if any, would be paid over the next several years.

4For simplicity, we will refer to the three-part arrangement for payment of Rubin’s legal fees as the 1975 fee agreement.

5The judge found the percentage of Olympic’s net profits paid to the individual defendants as additional compensation, after profit sharing, was approximately seventy-five percent in 1990, and grew to between ninety-two percent and ninety-seven percent from 1995 to 2005.

6Rubin filed a supplemental complaint on May 16, 2005, alleging that the excessive compensation was ongoing.

7As an initial matter, the parties dispute whether the defendants’ attempt to challenge or undo the 1975 transaction is properly before us, as the defendants’ motion to add a claim for rescission was denied, and the denial was not included in their notice of appeal. This court may refuse to enforce a contract or recognize a transaction entered into by an attorney that violates the law or public policy, including the policy expressed in the Massachusetts Rules of Professional Conduct and their predecessor. McLaughlin v. Amirsaleh, 65 Mass. App. Ct. 873, 880-885 (2006). This principle may be applied to the situation where an attorney seeks to enforce a fee contract which the court finds was the product of overreaching and was excessive and unreasonable as a matter of law. McInerney v. Massasoit Greyhound Assn., Inc., 359 Mass. 339, 353 (1971). Where such important policy considerations are at stake, it is not necessary that the parties raise the issue in their pleadings or that the judge address the issue below. McLaughlin v. Amirsaleh, supra at 880 n.11.

8The defendants argue that Rubin’s disclosure violated S.J.C. Rule 3:07, Canon 5, DR 5-104(A), 359 Mass. 815 (1972), in effect at the time of the 1975 transaction, providing that: “A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.” The judge determined that Rubin disclosed all that was required by the rules in existence at the time of the transaction. Moreover, a violation of a disciplinary rule, while it may be some evidence of an attorney’s negligence, does not in itself constitute an actionable breach of duty to a client. Fishman v. Brooks, 396 Mass. 643, 649-650 (1986). We note that this level of disclosure would not be sufficient under the current formulation of the Massachusetts Rules of Professional Conduct, which now requires, among other things, written disclosure and the client’s written consent. Mass.R.Prof.C. 1.8(a), 426 Mass. 1338 (1998).

9According to the record, Murray and Hopkins held both voting and nonvoting stock in Nicholson. Murray testified that, while still at Nicholson, he and his father, Murray, Sr., had a dispute over control of the company, and in 1975, his father wanted to change the designation of control under a prior stock trust agreement that gave Murray the right to run the company. When Murray, Sr., sued the defendants, Rubin assisted in defending the lawsuit and negotiating a settlement, which involved creating a voting trust agreement for the defendants’ Nicholson shares, whereby Murray and Hopkins gave up voting rights in exchange for the right to pursue their own business with Olympic.

11Contingent fee agreements currently are governed by Mass.R.Prof.C. 1.5, as amended, 432 Mass. 1301 (2000), which sets out a series of requirements that must be included in those agreements, including, for example, the contingency upon which fees will become owing and the method by which the fees and other costs are to be determined. In 1975, S.J.C. Rule 3:14, 351 Mass. 731 (1967), defined a contingent fee agreement as “an agreement, express or implied, for legal services of an attorney . . . under which compensation, contingent in whole or in part upon the successful accomplishment or disposition of the subject matter of the agreement, is to be an amount which either is fixed or is to be determined under a formula.”

12Here, the $40,000 cash payment, combined with stock valued at $2,750, and the Murray, Sr., notes, all of which the judge valued at approximately $53,000 at the time, was deemed reasonable payment for the 500 hours Rubin already had expended on the defendants’ behalf.

14The defendants complain that the burden of proving the reasonableness of the compensation was wrongly placed on them. The burden is on the directors, who set their own compensation, to prove their salaries were fair and did not result in harm to the corporation. Charlette v. Charlette Bros. Foundry, Inc., 59 Mass. App. Ct. 34, 43 (2003). The defendants argue, however, that the burden to prove what is reasonable compensation should shift to Rubin, if and when the defendants fail to prove that the salaries were reasonable. See, e.g., Samia v. Central Oil Co. of Worcester, 339 Mass. 101, 128 (1959) (“initial burden” to prove reasonableness of payments to directors and officers rested on them). Rubin provided sufficient evidence to support the judge’s findings of reasonable compensation so that we need not reach the burden-shifting issue. See Haskell v. Versyss Liquidating Trust, 75 Mass. App. Ct. 120, 127 n.14 (2009).

15The defendants argue that no evidence was presented to support the finding of excessive compensation for the years 1995 to 2001. However, the individual defendants’ positions within the company, their annual compensation, and the annual net profits of the company were in evidence, and the judge calculated reasonable compensation based on a percentage of the company’s net profits over the ten-year period, applying the same formula for all the years in question. Compare Sugarman v. Sugarman, 797 F.2d at 9 (founding stockholder’s salary suddenly doubled in one year, despite his absence from the company due to illness).

16As has been noted, the judgment requires the individual defendants to reimburse Olympic for the excessive compensation they paid themselves and then provides that Olympic will pay any taxes owed from the money returned. The defendants object that the remedy will cause the individual and Olympic to suffer significant tax consequences. This argument is unavailing because they cannot be heard to complain that they will suffer consequences as a result of the individual defendants’ improper actions wherein they paid themselves additional compensation to avoid having to pay taxes. See Crowley v. Communications for Hosps., Inc., 30 Mass. App. Ct. at 759 n.12 (where the defendants argued that “‘it was advantageous for tax purposes for the corporation to pay salaries rather than declare dividends[,]’ [i]t would seem that the defendants had no understanding of their obligations as directors, officers and controlling stockholders in a closely held corporation”). Moreover, the tax consequences and considerations are one of the reasons that a direct remedy would not accomplish the same end as a derivative remedy.

17“An action for money had and received lies to recover money which should not in justice be retained by the defendant, and which in equity and good conscience should be paid to the plaintiff.” Cannon v. Cannon, 69 Mass. App. Ct. 414, 423 (2007) (claim for money had and received where wife of deceased breached her contractual obligation to share life insurance proceeds with deceased’s children and kept full amount for herself).

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Civil action commenced in the Superior Court Department on December 29, 2005.

The case was heard by Charles J. Hely, J., on motions for summary judgment.

Shaun B. Spencer for the plaintiff.

Robert L. Boston for AutoZone Northeast, Inc.

Andre A. Sansoucy for Orleans Auto Supply, Inc.

Susan E. Stenger for CRA Trailers, Inc.

SIKORA, J. Geraldina Medeiros (Geraldina)4 and her husband, Anthony Medeiros (Anthony), owned and operated Bedford Fruit Company (Bedford Fruit or Company), a fresh produce supplier located in Hyannis. They acquired Bedford Fruit in 1952 and ran the company until it ceased business in 1991. They took an active role in day-to-day operations throughout their proprietorship. In May of 2005, almost fifteen years after Bedford Fruit had closed its doors, Geraldina died as a result of malignant mesothelioma.5

The plaintiff in this case, Kathleen Morin, is the daughter of Geraldina and the administratrix of her estate. In December, 2005, Morin began a wrongful death action on behalf of the estate. She named forty defendants, mainly automobile parts manufacturers and retailers.6 Morin alleged that her mother contracted mesothelioma because she had inhaled asbestos fibers as she worked at Bedford Fruit. She asserted that the asbestos fibers came from automobile parts which the defendants manufactured or sold, and claimed that each of the defendants was liable for breach of express and implied warranties of merchantability and for common-law negligence.7 Some of the defendants promptly settled with Morin, and some moved for summary judgment.

In an order dated November 3, 2008, a judge of the Superior Court allowed the summary judgment motions of twelve defendants and denied the summary judgment motions of three defendants.8 The volume of the parties’ issues and arguments below made individualized reasoning prohibitive. However, the parties’ arguments on appeal show us that the ground for allowance of each motion for summary judgment was the insufficiency of evidence of causation.

After settling with the remaining defendants, Morin appealed from the grant of summary judgment to three defendants: AutoZone Northeast, Inc. (AutoZone); Great Dane Trailers, Inc. (Great Dane); and Orleans Auto Supply, Inc. (Orleans). On appeal, Morin argues that she presented evidence from which a jury could find that asbestos fibers from those defendants’ products contributed to the cause of Geraldina’s death. As to the claims against AutoZone and Orleans, we agree with Morin and therefore reverse so much of the judgment as dismisses the claims against those defendants. As to Great Dane, we conclude that the judge properly allowed its motion for summary judgment.

Discussion. 1. Standard of review. This court reviews de novo the allowance of a motion for summary judgment. Miller v. Cotter, 448 Mass. 671, 676 (2007). The critical question is whether the moving party has established that an opposing party bearing the burden of proof at trial “has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). For this determination, we inspect the evidence in the light most favorable to the nonmoving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). We do not consider “the credibility of witnesses or the weight of the evidence.” Attorney Gen. v. Bailey, 386 Mass. 367, 370, cert. denied, 459 U.S. 970 (1982). However, the nonmoving party cannot defeat the motion for summary judgment by “rest[ing] on [its] pleadings and mere assertions of disputed facts.” LaLonde v. Eissner, 405 Mass. 207, 209 (1989).

2. Causation in asbestos claims. To prove causation in an asbestos case, the plaintiff must establish (1) that the defendant’s product contained asbestos (product identification), (2) that the victim was exposed to the asbestos in the defendant’s product (exposure), and (3) that such exposure was a substantial contributing factor in causing harm to the victim (substantial factor). Welch v. Keene Corp., 31 Mass. App. Ct. 157, 161-162 (1991). As noted above, summary judgment is appropriate only if the plaintiff has “no reasonable expectation” of proving one of these elements. Kourouvacilis v. General Motors Corp., supra at 716.

Several characteristics of the generation of disease and death by asbestos inhalation have moved courts to adapt the standard of proof of causation. Those characteristics are the prolonged latency of the induced disease,9 the multiple points of exposure of the victim, and the indistinguishability of contributory exposures. Because the resulting injury may not emerge for years or decades after exposure, the law does not require the plaintiff or his or her witnesses to establish the precise brand names of the asbestos-bearing products, the particular occasions of exposure, or the specific allocation of causation among multiple defendants’ products. Evidence will be sufficient to reach the fact finder if it permits the reasonable inference of the presence at a work site of both the plaintiff and the defendant’s asbestos-containing product for an appreciable period of exposure. See Welch v. Keene Corp., 31 Mass. App. Ct. at 162-163; Roehling v. National Gypsum Co. Gold Bond Bldg. Prods., 786 F.2d 1225, 1228 (4th Cir. 1986); In re Hawaii Fed. Asbestos Cases, 960 F.2d 806, 817-818 (9th Cir. 1992); Kreppein v. Celotex Corp., 969 F.2d 1424, 1425-1426 (2d Cir. 1992).

To raise a triable issue of a sufficient exposure and of a substantial contributing role, the plaintiff need not produce evidence of “but for” causation on the part of the targeted product, but only of its contribution to causation of the resulting injury. See Welch v. Keene Corp., supra at 162, citing O’Connor v. Raymark Indus., Inc., 401 Mass. 586, 589 (1988); Payton v. Abbot Labs, 780 F.2d 147, 156 (1st Cir. 1985); and Restatement (Second) of Torts § 433B(1) comment a (1965). However, the adjusted standard of proof of causation does not relax to a level of speculation. The plaintiff must produce evidence of a degree of exposure greater than “insignificant or de minimis.” Welch v. Keene Corp., supra.

With this analytical framework in mind, we examine the evidence against each defendant and consider whether Morin presented sufficient evidence of the necessary elements. If evidence of any element is deficient, summary judgment would be appropriate.

At the outset we note that one of Morin’s expert medical witnesses, a well qualified pathologist, furnished the opinion that “each and every exposure to asbestos that [Geraldina] received as a bystander to the Bedford Fruit mechanics’ work with asbestos-containing vehicles . . . was a substantial contributing factor in causing [her to contract] malignant mesothelioma.” This testimony is critical because it explains the causal link between exposure to asbestos and contraction of the disease. See Welch v. Keene Corp., supra at 162 (jury could infer that plaintiff’s exposure was substantial factor because plaintiff offered expert testimony explaining that plaintiff’s disease “was caused by the cumulative effect of all the [asbestos] dust that he had inhaled over the span of his career”). See also Sheffield v. Owens-Corning Fiberglass Corp., 595 So. 2d 443, 456 (Ala. 1992) (evidence sufficient to show causation where plaintiff worked in close proximity to defendant’s asbestos products and expert testified that “each and every exposure to asbestos contributes in a causally significant and substantial manner to asbestos-related lung impairment”); Jones v. John Crane, Inc., 132 Cal. App. 4th 990, 999 (2005) (substantial factor evidence sufficient because expert witness asserted that each and every exposure to defendant’s asbestos products was a substantial factor toward plaintiff’s contraction of lung cancer); Purcell v. Asbestos Corp. Ltd., 153 Or. App. 415, 421 (1998) (evidence sufficient to show causation where plaintiff’s expert testified that a single exposure to asbestos fibers can cause mesothelioma and concluded that “all of plaintiff’s exposure to asbestos fibers over the years ‘contributed to some degree’ to his mesothelioma”).

The main body of percipient evidence in this case comes from the deposition testimony of Michael Medeiros (Michael) and John Brillante. Michael is Geraldina’s son. He worked part time at Bedford Fruit throughout his adolescence, from the late 1970s until his graduation from high school in 1984. He worked elsewhere for a year, then returned to Bedford Fruit in 1985, and worked there full time until its closure in 1991. His many different responsibilities included mechanical work.

John Brillante was Bedford Fruit’s in-house mechanic for a four- to five-year period in the mid-1980s. His primary responsibility was maintenance of Bedford Fruit’s vehicles. He had charge of ordering replacement auto parts for the company fleet. In addition to the testimony from Michael and Brillante, the summary judgment record includes deposition testimony from representatives of Great Dane, AutoZone, Orleans, and medical experts.

3. Plaintiff’s case against AutoZone. Morin asserts that Bedford Fruit personnel purchased asbestos-containing brake and clutch parts from American Discount Auto Parts (ADAP), a company acquired by AutoZone in 1998. She claims that Geraldina was exposed to asbestos fibers emanating from the parts at the Bedford Fruit building.

a. Product identification. ADAP opened a store in Hyannis in the late 1970s. It was the closest automobile parts store to Bedford Fruit. Company personnel went to the ADAP store to purchase after-market parts for its medium- and light-duty vehicles. Michael Medeiros purchased replacement brake and clutch parts from ADAP, and saw the word “asbestos” on the packaging. AutoZone’s representative admitted that the ADAP store in Hyannis carried asbestos-containing brake and clutch parts during the 1970s and for at least a time in the 1980s.

b. Exposure. Bedford Fruit’s fleet consisted of approximately fifteen vehicles, ten of which were medium- to light-duty models. The company purchased parts for their maintenance from eight different stores, including ADAP. Michael Medeiros purchased parts from ADAP “every so often.” When ADAP’s attorney asked Michael whether he remembered the first and last time he saw the word “asbestos” on parts purchased from ADAP, he responded that “it would be hard for me to say,” and explained that he could not “put a finger on one particular place” because “[t]here was so much for so many years.”

Brillante stated that brake replacements were a major part of his job. He estimated that he performed that procedure somewhere “in the hundreds” of times at a frequency between every other day to every third day. He did not give an estimate of the frequency of clutch replacements, but described them as “routine” and “many.” Michael testified that they did “quite a bit [of clutch work] . . . over the course of time.”

Brillante and Michael performed all of the mechanical repair work in the first loading bay of the Bedford Fruit building. Employees called this area “the pit.” An elevated runway ran through the middle of the building. The runway was about four feet high and ten feet wide. It separated the half of the building with the loading bays from the half of the building with offices, walk-in coolers, and a storage area.

Anthony Medeiros’s office was located directly across the runway from the pit. A door opened from the runway into Anthony’s office, and he typically had the door propped open. At the other end of Anthony’s office, a door opened into Geraldina’s office. In addition, a window connected their offices. They left it open so that they could pass documents back and forth. Geraldina’s office was about twenty-five to thirty feet from the pit.

Brillante and Michael used an air hose to blow out the dust as they performed brake and clutch jobs. The air hose would propel dust into the air. Brillante stated that the bay door to the pit was usually open and that air would flow from the outside across the pit and then into Anthony’s office or down the runway.

At deposition, one of the plaintiff’s expert witnesses testified that asbestos can “remain airborne for long periods of time, particularly where there is continuing human activity, air currents or other means by which the air is agitated.” He testified further that “asbestos fibers can and do drift considerable distances” and that “exposures may occur at ten, 20 or 40 or more feet away from the operation that is actually liberating the asbestos fibers into the air.” Another expert added the opinion that “[t]he mechanics’ use of an air hose . . . caused asbestos dust to be spread in the ambient air throughout Bedford Fruit’s facility,” and that Geraldina inhaled this dust “[w]hether in her office or in proximity to the mechanics.”

Geraldina worked six days a week. Her usual hours were from seven in the morning to five or six at night. Her activities varied. They included paperwork in her office. She would walk up and down the runway to make sure that the deliveries were going out as planned. She would sometimes inspect produce on the part of the runway adjacent to the pit. She would also run errands taking her in and out of the building up to eight to nine times a day. When she left the building, she would walk across the part of the runway next to the pit, down a set of stairs leading to the pit, and along the side of the pit until she reached a door to the outside.

The volume of parts purchased by Bedford Fruit from ADAP and Geraldina’s work routine would permit a finding that she was in “close proximity” to asbestos-containing parts from ADAP on numerous occasions. Welch v. Keene Corp., 31 Mass. App. Ct. at 161. Thus, there is sufficient evidence of exposure. See ibid. (“It is enough . . . to reach the jury that [the plaintiff] show that [she] worked with, or in close proximity to, the defendants’ asbestos products”). See also Roehling v. National Gypsum Co. Gold Bond Bldg. Prods., 786 F.2d at 1228 (“The evidence, circumstantial as it may be, need only establish that [the plaintiff] was in the same vicinity as witnesses who can identify the products causing the asbestos dust that all people in that area, not just the product handlers, inhaled”). Furthermore, even without close proximity, a jury could infer that Geraldina was exposed to asbestos fibers from ADAP parts which spread into her office and down the runway from the mechanics’ use of the air hose. See Hoffman v. Allied Corp., 912 F.2d 1379, 1380, 1383 (11th Cir. 1990) (plaintiff introduced sufficient evidence of exposure, even though he worked more than 300 feet away from dry dock where coworkers used defendant’s asbestos products).

c. Substantial contributing factor. The plaintiff’s expert medical testimony supplies evidence permitting a finding that the exposure to AutoZone’s parts substantially contributed to the causation of the mesothelioma.

4. Plaintiff’s case against Orleans. Similarly, the plaintiff alleges that Geraldina developed mesothelioma by inhalation of asbestos fibers from parts purchased at Orleans.

a.Product identification. Orleans has operated an automobile parts store on Barnstable Road in Hyannis since 1978. Bedford Fruit was located within two miles of the store. Michael Medeiros and Brillante purchased aftermarket brake and clutch parts from Orleans for Bedford Fruit’s light- and medium-duty vehicles. Michael saw the word “asbestos” written on the packaging of parts from Orleans. At deposition, Orleans’s representative admitted that it had sold Borg-Warner clutches in the 1970s and 1980s, and that these clutches “likely had some asbestos content.” The representative acknowledged that Orleans had sold brake shoes in the 1970s and 1980s which “may have” contained asbestos. He also remembered correspondence from several brake manufacturers indicating that they were removing asbestos from brakes. These communications occurred somewhere between the late 1980s and early 1990s.

The product identification evidence against Orleans closely approximates the evidence against AutoZone. It leads to the same conclusion. Michael’s testimony about the packaging of Orleans products is strong evidence that the parts contained asbestos. The admissions of Orleans’s representative are similarly probative. The aggregate information would permit a finding that Bedford Fruit personnel purchased asbestos-bearing brake and clutch parts from Orleans.

b. Exposure. The exposure evidence against Orleans differs little from the exposure evidence against AutoZone. The evidence of the potential spread of asbestos fibers and Geraldina’s proximity to the pit during an average workday is the same. Michael and Brillante’s testimony about the volume of purchases at Orleans parallels their testimony about purchases at ADAP. They both testified that Bedford Fruit purchased “a lot” of brakes and other parts from Orleans.

This information, along with Brillante’s testimony regarding the regularity of brake and clutch jobs, supports the inference that Bedford Fruit purchased asbestos-containing brake and clutch parts from Orleans on many occasions. The frequency of purchases and the evidence of Geraldina’s work routine permitted findings that she had been in “close proximity” to asbestos-containing products from Orleans, and that she had been exposed to asbestos fibers from these products. See Welch v. Keene Corp., 31 Mass. App. Ct. at 161. Additionally, the evidence permits a finding that she inhaled asbestos fibers which had migrated from the pit into her office, and which had originated in Orleans parts. See Hoffman v. Allied Corp., 912 F.2d at 1383. Finally, a jury could find the necessary causal link between exposure to Orleans products and Geraldina’s contraction of mesothelioma by reason of the expert medical opinion.

5. Plaintiff’s case against Great Dane. The plaintiff alleges also that Geraldina contracted mesothelioma from inhalation of asbestos fibers from the brakes of a Great Dane trailer maintained by Bedford Fruit. The claim rests upon two independent theories of liability. The first is that fibers came from brakes manufactured by Great Dane. The second is that the fibers came from other manufacturers’ brakes which Bedford Fruit personnel installed into the Great Dane trailer. In order to succeed under either theory of liability, the plaintiff must present evidence permitting a finding of all the necessary elements of causation. Because the two theories depend on different facts, we analyze them separately.

a. Great Dane as manufacturer of asbestos-containing brakes. This theory requires the trailer to have contained asbestos brakes manufactured by Great Dane when Bedford Fruit initially purchased it. Bedford Fruit bought the used Great Dane trailer in 1984. Great Dane had manufactured it in 1977 and originally sold it to one of its independent dealerships. The dealership resold the trailer to the Hertz Corporation. It remained unknown whether Bedford Fruit purchased the trailer from Hertz or a subsequent owner.

Michael estimated that the Great Dane trailer would have needed at least one brake replacement between the time of the original sale in 1977 and the time of its purchase by Bedford Fruit in 1984. He stated that Bedford Fruit personnel changed the brakes on the trailer at least once a year.

At deposition, the Great Dane representative did not know whether the originally manufactured trailer contained asbestos brake linings. However, he admitted that before 1984 Great Dane had manufactured most trailers with asbestos brake linings.

The 1997 Great Dane trailer maintenance manual included an instruction advising mechanics: “When replacing [brake] lining, be sure to use the same lining as that removed from the trailer so that the [gross axle weight rating] is not reduced.” The Great Dane representative interpreted this instruction as advice to “replace one friction level lining with the same friction level lining as the replacement lining” and not as advice to “replace asbestos [linings] with asbestos [linings].” He knew that this instruction was a standard directive included in Great Dane maintenance manuals, but he did not know exactly when Great Dane had begun to include the instruction in the manuals.

The plaintiff contends that this evidence permits a finding that the trailer had contained asbestos brakes from Great Dane at the time of its purchase by Bedford Fruit in 1984. Her theory is that a jury could find that Great Dane had manufactured the trailer with asbestos brakes in 1977, and that previous owners had replaced the original asbestos brake linings with more asbestos brake linings from Great Dane by reason of the instruction in the manual.

The admission of Great Dane’s representative would allow a finding that Great Dane originally had manufactured the trailer with asbestos brake linings. However, the remainder of Morin’s argument involves multiple layers of speculation. First, no evidence indicates that the 1977 trailer maintenance manual contained the same brake replacement instruction as the 1997 manual. Great Dane’s representative did not know when Great Dane first inserted this instruction into its trailer maintenance manuals. The evidence is insufficient for the inference that the 1977 manual contained this instruction. Second, even if the jury could infer that the 1977 manual contained this instruction, no evidence indicates that the previous owners would have interpreted this instruction in the manner suggested by the plaintiff. Great Dane’s representative stated that the instruction was not intended to advise mechanics to replace asbestos brakes with more asbestos brakes. Finally, the instruction did not advise mechanics to replace the brakes only with more brakes from Great Dane. Both Brillante and Michael acknowledged that they had never purchased any replacement parts from Great Dane.

In sum, the plaintiff had no reasonable expectation of proving that the trailer at the time of purchase in 1984 or throughout the period of maintenance to 1991 contained asbestos-bearing brakes manufactured by Great Dane. It could not establish the essential element of product identification.

b. Failure to warn. In the alternative, the plaintiff claims that Great Dane is liable for failing to warn Bedford Fruit about the dangers of using compressed air in the removal of any manufacturer’s asbestos brakes from the trailer.

Under Massachusetts law, a manufacturer has a duty to warn purchasers of dangers involved in the use of the product of which the manufacturer knows or should know. Mitchell v. Sky Climber, Inc., 396 Mass. 629, 631 (1986). Accordingly, a manufacturer has “no duty . . . to set forth . . . a warning of a possible risk created solely by an act of another that would not be associated with a foreseeable use or misuse of the manufacturer’s own product.” Id. at 632. This language leaves unanswered the question whether a manufacturer owes a duty to warn if the potential danger, though created solely by a third party, is associated with a foreseeable use of the manufacturer’s product.

In the instant case, it was foreseeable to Great Dane that owners might repair its trailers with asbestos brakes from other manufacturers. The plaintiff urges that we impose a duty to warn. No Massachusetts precedent directly addresses that proposition.10 We need not reach the question, however, as, in the present circumstances, we have a ground for decision short of the proposed choice between adoption or rejection of a categorical rule or corollary. For the plaintiff to survive Great Dane’s motion for summary judgment, the evidence in the summary judgment record must create the triable question whether Geraldina experienced more than “insignificant or de minimis” exposure to the asbestos product. Welch v. Keene Corp., 31 Mass. App. Ct. at 162. In contrast to the estimates of the use of voluminous or substantial amounts of parts from the codefendant retailers, Michael testified that Bedford Fruit personnel would have changed the brakes on the Great Dane trailer about once per year. That process would have occurred on six or seven days over the ensuing seven-year span, or at a frequency of about once every 300 work days for Geraldina. We do not know whether those personnel were consistently installing asbestos-bearing brake linings. The trailer was only one of the fifteen vehicles in the building bay area or pit. We cannot know whether Geraldina came into contact with fibers from the trailer’s annual brake replacement. While the standard of proof is generous, it has typically required evidence of greater exposure than appears from the Great Dane trailer. See, e.g., Chavers v. General Motors Corp., 349 Ark. 550, 563-564 (2002) (affirmance of summary judgment in favor of defendants; insufficient evidence of exposure to asbestos-bearing brakes); McGonnell v. Kaiser Gypsum Co., 98 Cal. App. 4th 1098, 1104-1106 (2002) (affirmance of summary judgment in favor of defendants; conjectural evidence of product identification and exposure); Reiter v. Pneumo Abex, LLC, 417 Md. 57, 73 (2010) (affirmance of summary judgment in favor of defendants; insufficient evidence of proximity and exposure to defendant manufacturers’ asbestos-bearing brakes). Compare Welch v. Keene Corp., supra at 162 (plaintiff described his application of defendants’ asbestos-bearing cements on “‘hundreds’ of sites”); Roehling v. National Gypsum Co. Gold Bond Bldg. Prods., 786 F.2d at 1226-1227 (through five to six-month period, plaintiff pipefitter was exposed continuously to asbestos cement in the course of construction of power plant boiler); In re Hawaii Fed. Asbestos Cases, 960 F.2d at 818 (plaintiff’s estate submitted evidence that he had swept up the dust resulting from the stripping of asbestos insulation from the pipes of at least four major naval ships); Kreppein v. Celotex Corp., 969 F.2d at 1425 (plaintiff’s estate furnished evidence that for two years he had swept up asbestos debris in the engine rooms and boiler rooms of shipyard vessels and later had suffered additional exposure as an iron worker at three major building sites). Upon the available information related to the Great Dane trailer, we conclude that the evidence requires speculation about a degree of exposure greater than “insignificant or de minimis.” The motion judge correctly allowed Great Dane’s motion for summary judgment.11

Conclusion. For these reasons, we reverse so much of the judgment as dismisses the claims against defendants AutoZone and Orleans, and affirm the judgment in all other respects.

2Orleans Auto Supply, Inc., and Great Dane Limited Partnership. Prior to January 1, 1997, the latter entity was known as Great Dane Trailers, Inc. Subsequently, it became known as CRA Trailers, Inc. We shall refer to this defendant as “Great Dane.”

3Justice Duffly participated in the deliberation on this case while an Associate Justice of this court, prior to her appointment as an Associate Justice of the Supreme Judicial Court.

4For the sake of clarity, we use the first names of members of the Medeiros family.

5Mesothelioma consists of a tumor or layer of abnormal tissue deriving from cells lining the pleura (“membrane enveloping the lungs and lining the walls of the pulmonary cavities”) or the peritoneum (the sac lining the abdominopelvic cavity). It is composed of spindle cells or fibrous tissue and grows as a thick sheet covering the viscera. Stedman’s Medical Dictionary 1192, 1465, 1512 (28th ed. 2006). Geraldina died from diffuse malignant mesothelioma.

The plaintiff’s medical expert furnished a detailed opinion that in Geraldina’s circumstances “the only established cause” of her disease would have been inhalation of asbestos released from work on brakes and clutches of vehicles at Bedford Fruit.

7See, e.g., Back v. Wickes Corp., 375 Mass. 633, 640-641 (1978); Haglund v. Philip Morris, Inc., 446 Mass. 741, 745-748 (2006), for elaboration of the applicability of the implied warranty of merchantability to both the manufacturer and subsequent seller of a product “defective and unreasonably dangerous” for its ordinary purpose.

10Courts in several other jurisdictions have confronted the question in asbestos cases. We are aware of three which have held that a manufacturer will not be liable for the risk caused solely by a third party’s replacement asbestos product even if the use of the third party’s product was reasonably foreseeable to the manufacturer. See Taylor v. Elliott Turbomach. Co., 171 Cal. App. 4th 564, 579 (2009) (no duty to warn of danger created exclusively by a subsequent part from a separate manufacturer); Ford Motor Co. v. Wood, 119 Md. App. 1, 10, 33-37 (1998) (plaintiff’s estate claimed that he contracted mesothelioma from exposure to asbestos replacement brakes as he repaired Ford automobiles; no duty to warn in the absence of conduct by Ford causing the use of the asbestos parts); Braaten v. Saberhagen Holdings, 165 Wash. 2d 373, 389-390 (2008), citing Simonetta v. Viad Corp., 165 Wash. 2d 341, 363 (2008) (no duty to warn of danger created exclusively by a subsequent part from a separate manufacturer). Contrast O’Neil v. Crane Co., 177 Cal. App. 4th 1019, 1031-1036, cert. granted, 223 P.3d 1 (Cal. 2009) (rejecting the reasoning in Taylor v. Elliott Turbomach. Co., supra, and finding a duty to warn if the defendant manufacturer reasonably could foresee that its original asbestos parts would give way to similar asbestos replacement parts, and thus creating a split of authority among the California intermediate appellate districts).

Considerations against the imposition of a duty to warn about replacement parts include (1) the original manufacturer’s lack of preventive control over the design and marketing of the later component; (2) its lack of any economic benefit from the sale of the replacement component; (3) the perishability of warnings in manuals during the span between the original sale and the later or remote owner’s acquisition of the product; and (4) the greater suitability in these circumstances of a duty to warn by the component manufacturer by reason of its control, benefit, and clear accountability. See Riehle, Fox, and Zand, Products Liability for Third Party Replacement or Connected Parts: Changing Tides from the West, 44 U.S.F. L. Rev. 33, 61-62 (2009-2010).

11The evidentiary requirement of more than insignificant or de minimis exposure and the characterization of a single inhalation as a substantial contributing factor are not inconsistent. A triable question of liability requires more than a minimal speculative possibility that the victim took a single breath of particles from the product of the charged defendant. The greater the exposure, the greater becomes the probability of an inhalation. Our determination that Geraldina’s possible exposure to the Great Dane trailer brake replacement procedure (part of one day per year) leaves any inhalation conjectural. Otherwise, if minimal exposure permitted the inference of an inhalation, the law would effectively subject the defendant manufacturer or seller to the risk of absolute liability.

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Indictments found and returned in the Superior Court Department on December 5, 2006.

The cases were tried before Judd J. Carhart, J.

Ruth Greenberg for the defendant.

Elizabeth Dunphy Farris, Assistant District Attorney, for the Commonwealth.

GANTS, J. On October 10, 2005, Sylvia Mazur discovered the body of her eighty-three year old mother, Rose Ann Martowski (victim), on the sofa of her mother’s home in Ware. The victim’s skull had been fractured so severely that the entire right side of her skull had collapsed, leaving her brain exposed and her face bloodied. The home had been ransacked, and the victim’s jewelry and cash were gone. A fire had been set on the bed in the victim’s bedroom, but it had extinguished itself. A jury in the Superior Court convicted the defendant of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder, and of armed burglary and arson.1 On appeal, the defendant argues that he should be granted a new trial because the trial judge erred by (1) improperly barring third-party culprit evidence; (2) admitting in evidence the medical examiner’s opinion as to the type of weapons that were consistent with the victim’s injuries; and (3) denying four of the defendant’s challenges for cause during jury selection. We conclude that the judge did not err in any of these rulings, and affirm the defendant’s convictions. After a complete review of the record, we also conclude that there is no basis to exercise our power under G. L. c. 278, § 33E, to reduce his murder conviction to a lesser degree of guilt or to order a new trial.

Background. Because the defendant does not challenge the sufficiency of the evidence, we provide only a summary of the evidence, viewed in the light most favorable to the prosecution, reserving certain details for our analysis of the issues raised on appeal.

Frank Gurka hired the defendant between September 7 and September 11, 2005, to help him load and sell antiques and collectibles at the Brimfield Fair. On September 17, Gurka and his wife returned from another antiques fair at approximately 11 P.M. and went to bed. The next morning, Gurka discovered that the bathroom window and screen in his home had been opened, approximately $150 in cash had been removed from a money pouch in the parlor, and a collectible bottle commemorating the flight of Apollo 15 was missing. On July 21, 2006, the defendant gave the Apollo 15 collectible bottle as a birthday present to his friend, Joseph Brown.

At approximately 5 P.M. on October 9, 2005, the victim’s next door neighbor, ninety-four year old Sophie Cloutier, saw a man stare for about ten minutes at the rear of the victim’s house.2 That night, she saw a “smoky” light in the victim’s home, which was unusual because she had never seen lights that late at night in the victim’s home. Later that day, after the victim’s body had been discovered and the police had secured the crime scene, the police observed that the kitchen window above the sink in the victim’s home was open, there was a footwear impression at the base of the kitchen window, and an unsmoked Camel “wide filter” cigarette was lodged between the screen and window. The defendant smoked Camel wide cigarettes. The cigarette was sent for deoxyribonucleic acid (DNA) testing, which revealed a partial male DNA profile from a single source that matched the defendant’s DNA profile. The probability of another randomly selected individual besides the defendant having the same DNA profile was approximately one in 6.242 billion of the Caucasian population, one in 2.737 billion of the African-American population, and one in 2.492 billion of the Hispanic population. When interviewed by the police, the defendant said that he did not know where the victim’s residence was located, and that there was no reason why his DNA might be inside that house.

The victim had no checking account and paid her bills with money she kept in her handbag. Approximately three weeks before her death, the victim had an estimated $3,000 in cash, much of it in $100 and $50 denominations, and was scheduled to receive her monthly Social Security check at the beginning of October. The handbag with the cash was gone when her body was discovered.

The defendant, who was unemployed at the time of the victim’s death but a frequent user of cocaine, marijuana, and other drugs, had a “good-size wad of money” on the morning of October 11, 2005, and used a $100 bill to purchase video game products. About a week before Halloween in 2005, the defendant gave a bracelet to a friend, and showed her a green metal box containing other jewelry that the friend described as “[w]hat an older woman would wear . . . something my grandmother would have.” Two days later, he told her that he had won about $3,000 on a “scratch ticket” and carried a wad of twenty dollar bills. Later in the fall of 2005 he purchased one-quarter pound of “the next step up type of” marijuana, costing approximately $900, which he paid with $50 and $100 bills; he had been purchasing $20 or $40 bags of lesser quality marijuana in the summer and early fall of 2005. The defendant late that fall also purchased one-half ounce of cocaine for $400.

In a house of correction awaiting trial, the defendant admitted to one detainee that he had broken into a home in Ware and beat an “old lady” to death. He boasted that breaking and entering was an “art form,” that he was very skilled and well prepared, that he always entered through a window, and that he always wore a hat and gloves to avoid leaving any evidence behind.3 He said that he knew the victim and she knew him, that he took some money, coins, jewelry, and an old jewelry box, and that, after “whacking” her, he gathered some papers, poured perfume over them, lit them, and left.4 He said his only mistake was in leaving the cigarette, which he had used to hold up the window screen.5

The defendant told another detainee that he had burned holes through the window screen with a cigarette to get through the window, that the woman approached him, and he got scared and hit her in the head several times with a hammer, and later threw the hammer into a lake or stream in the back of her home.6

“Third-party culprit evidence is ‘a time-honored method of defending against a criminal charge.’ Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). ‘A defendant may introduce evidence that tends to show that another person committed the crime or had the motive, intent, and opportunity to commit it.’ Commonwealth v. Lawrence, 404 Mass. 378, 387 (1989), quoting Commonwealth v. Harris, 395 Mass. 296, 300 (1985). We have given wide latitude to the admission of relevant evidence that a person other than the defendant may have committed the crime charged. ‘If the evidence is “of substantial probative value, and will not tend to prejudice or confuse, all doubt should be resolved in favor of admissibility.”‘ Commonwealth v. Conkey, 443 Mass. 60, 66 (2004), quoting Commonwealth v. Keizer, 377 Mass. 264, 267 (1979). Yet, this latitude is not unbounded. The limitations are twofold. First, because the evidence is offered for the truth of the matter asserted — that a third party is the true culprit — we have permitted hearsay evidence that does not fall within a hearsay exception only if, in the judge’s discretion, ‘the evidence is otherwise relevant, will not tend to prejudice or confuse the jury, and there are other “substantial connecting links” to the crime.’ Commonwealth v. Rice, 441 Mass. 291, 305 (2004), quoting Commonwealth v. O’Brien, 432 Mass. 578, 588 (2000). Second, the evidence, even if it is not hearsay, ‘must have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative.’ Commonwealth v. Rosa, supra. Each of these limitations recognizes that the admission of feeble third-party culprit evidence poses a risk of unfair prejudice to the Commonwealth, because it inevitably diverts jurors’ attention away from the defendant on trial and onto the third party, and essentially requires the Commonwealth to prove beyond a reasonable doubt that the third-party culprit did not commit the crime. See id.”

The defendant claims that this evidentiary standard for the admissibility of third-party culprit evidence violates the standard established by the United States Supreme Court in Holmes v. South Carolina, 547 U.S. 319 (2006) (Holmes), under the due process clause of the Fourteenth Amendment to the United States Constitution. In Holmes, the Court set forth two “widely accepted” formulations of “rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged.” Id. at 327. The two formulations provide:

“Evidence tending to show the commission by another person of the crime charged may be introduced by [the] accused when it is inconsistent with, and raises a reasonable doubt of, his own guilt; but frequently matters offered in evidence for this purpose are so remote and lack such connection with the crime that they are excluded.”

Id., quoting 41 C.J.S., Homicide § 216, at 56-58 (1991).

“[T]he accused may introduce any legal evidence tending to prove that another person may have committed the crime with which the defendant is charged . . . . [Such evidence] may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial.”

We see nothing in either of these two “widely accepted” formulations of the evidentiary standard for the admissibility of third-party culprit evidence that is inconsistent with our standard. All consider whether the third-party culprit evidence tends to prove that someone other than the defendant committed the crime, or whether the evidence is speculative, remote, or lacks any connection with the crime charged.

The defendant, however, contends that our standard is unfair because it admits a defendant’s exculpatory third-party culprit evidence only where it is of “of substantial probative value, and will not tend to prejudice or confuse,” Commonwealth v. Keizer, supra, quoting Holt v. United States, 342 F.2d 163, 166 (5th Cir. 1965), while a prosecutor’s inculpatory evidence is admitted unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, being unnecessarily time consuming, or needless presentation of cumulative evidence.” Mass. G. Evid. § 403 (2010), and cases cited. There is no evidentiary double standard and, consequently, no unfairness. Where evidence is otherwise admissible, “[n]ormal relevancy considerations apply in determining the admissibility of evidence that someone else committed the crime.” Commonwealth v. Conkey, supra. See Commonwealth v. Jewett, 392 Mass. 558, 562 (1984). In Commonwealth v. Keizer, supra, we said that “all doubt should be resolved in favor of admissibility” of the third-party culprit evidence where “the proffered evidence is of substantial probative value, and will not tend to prejudice or confuse.” Id., quoting Holt v. United States, supra. The same could be said about prior bad act evidence offered against a defendant.

Applying this standard to our independent review, we evaluate separately the defendant’s claim of error as to each alleged third-party culprit. See Commonwealth v. Conkey, supra at 66-67 (“Because the issue is one of constitutional dimension, we are not bound by an abuse of discretion standard, but rather examine the issue independently”). The jury heard substantial evidence regarding Brown. They learned that Brown was the defendant’s friend, that the Apollo 15 bottle stolen from the Gurka residence was retrieved from Brown’s residence on September 7, 2006, and that the defendant in the summer of 2005, after asking someone at a party to help him break into a house in East Longmeadow, left the party that night with Brown. They also learned that a DNA sample was taken from Brown and that he was excluded as a source of the DNA profile found on the cigarette. The only evidence that the defendant contends the judge erred in excluding was that Brown was interviewed about the Gurka burglary, which would suggest that he was a suspect in the burglary based on his possession of the Apollo 15 collectible bottle.8 The fact that a third party was a suspect in the police investigation is not evidence that the third party committed the crime, just as the prosecutor’s decision to seek an indictment against the defendant is not evidence that the defendant committed the crime. The judge did not err in excluding this evidence.

The jury heard even more evidence as to Babb. The jury learned that he lived next door to the victim’s residence, in the same house as Sophie Cloutier, that he was alone with Cloutier on the evening of October 10, 2005, and that he smoked. The jury also learned that a DNA sample was taken from Babb and that he, too, was excluded as a source of the DNA profile found on the cigarette. In addition, the jury learned that shoes were taken from his residence and eliminated as the source of the footwear impression left beneath the victim’s open kitchen window; that fingerprints were taken from him and did not match any of the latent fingerprints found in the victim’s residence; that a hatchet in Babb’s residence found near a wood pile tested negative for blood; that he was interviewed during the course of the criminal investigation; and that, when his hands were tested for the presence of blood on October 10, 2005, the test did not reveal the change in color that suggested the presence of blood.9 The defendant claims that the judge erred in refusing to let Joyce Bousquet, one of the victim’s daughters, testify that the police considered Babb a suspect, that her mother had been nervous about Babb, or that she had heard that Babb had a criminal record and had been in jail.10 We conclude that the judge did not err in excluding this evidence.

As to Chartier, the jury learned only that his known DNA sample was excluded as a source of the DNA profile found on the cigarette, and that he was interviewed during the investigation. The defendant argues that the judge erred by barring him from eliciting from Sergeant Christopher Wilcox of the State police, who traveled to Georgia to interview him, that Chartier admitted to smoking Camel wide filter cigarettes, had a warrant lodged against him by the United States Army, carried a small hatchet for his work at a paper mill, had lost between $400 and $500 each month in “online gambling,” and said during the interview with Sergeant Wilcox that he figured the State trooper was there because of the murder in Ware. This evidence, considered collectively, is not of probative value in suggesting Chartier’s guilt. While Chartier may smoke the same type of cigarette found at the scene, the defendant’s DNA, not Chartier’s, was found on that particular cigarette. A small hatchet is not so unique a tool that its possession would suggest Chartier’s responsibility for the victim’s death. Nor would his alleged violation of the military code, or his financial problems, reasonably suggest that he was the killer. And it did not suggest consciousness of guilt that Chartier figured that the well-publicized murder of an elderly woman in Ware was the reason why a State trooper traveled to Georgia to interview him. The judge did not err in excluding this evidence.

As to Kenneth Kowalski, the defendant claims that the judge erred in barring evidence that Kowalski’s girl friend was a known “crack” cocaine addict and that he walked out of his interview with Sergeant Wilcox after the trooper accused him of killing the victim to support her drug habit. A State trooper’s suspicion is not probative evidence of guilt, nor, standing alone, is speculation that Kowalski committed the burglary of the victim’s home because he needed money to buy drugs for his girl friend. There was no error in excluding this evidence.

In sum, we conclude that the judge carefully evaluated the probative value of the proffered third-party culprit evidence and the risk of unfair prejudice to the Commonwealth from the admission of such speculative and remote evidence, and correctly ruled that the evidence was not admissible.

2. Admission in evidence of medical examiner’s opinion as to the type of weapons that were consistent with the victim’s injuries. Dr. Joann Richmond, the medical examiner who conducted the autopsy of the victim, testified that the nature of the victim’s wounds “tells me that the edge of the weapon that cut this piece of tissue was thick and somewhat dull; not like a scalpel, not like a knife; something that would be thicker and duller so that the edges of the tissue are scraped and not surgically cut. . . . It would be something more along the lines of perhaps a small axe or hatchet.” Later, when asked for her opinion as to the types of weapons that would be consistent with the victim’s injuries, Dr. Richmond, over objection, stated that the “type of weapon used would be something along the lines of a machete, a small hand axe, some type of meat cleaver.” She later testified, also over objection, that she observed and purchased at a Home Depot store a dry wall hammer, whose heaviness and sharp edge was consistent with the pattern of injuries she observed on the victim. She showed the jury the dry wall hammer, which was marked for identification but not offered in evidence.

The defendant argues that the judge abused his discretion in admitting this evidence, because no weapon linked to the murder was found and the medical examiner’s opinion was mere speculation. We disagree. The expert’s training and experience allowed her to offer an opinion as to the type of weapon that was consistent with the type of injuries suffered by the victim. Where the prosecution offered evidence that the defendant had access to a dry wall hammer in 2005 and had an axe and a ball peen hammer in his room when his parents’ residence was searched on September 22, 2006, evidence that these types of tools were consistent with the injuries inflicted on the victim was relevant and not unfairly prejudicial. See Commonwealth v. James, 424 Mass. 770, 779 (1997) (possession by defendant of instrument capable of being used in commission of crime admissible without direct proof that instrument was the one used).

Nor did the judge err in allowing the expert to show the jury a dry wall hammer. Dr. Richmond made clear that she had purchased the dry wall hammer a couple of weeks earlier; there was no risk that the jury would mistakenly think that her dry wall hammer was the murder weapon. The dry wall hammer allowed her to show the jury the qualities of a weapon consistent with the type of injuries inflicted. The judge acted well within his discretion in concluding that the jury would benefit from such an illustrative example, and that the benefit exceeded the risk of unfair prejudice.

3. Denial of the defendant’s challenges for cause. The defendant claims that the judge erred in denying four challenges for cause during jury selection, and that the error requires a new trial because the defendant exhausted his peremptory challenges on jurors who should have been excused for cause. A judge has broad discretion in deciding whether a prospective juror is impartial, and his decision will be reversed only for an abuse of discretion. Commonwealth v. Auguste, 414 Mass. 51, 56-57 (1992). We conclude the judge properly exercised his discretion.

We address each of the cause challenges separately. Juror no. 118, when he was a law student, served as an intern in an elder care unit of a legal services office, where he heard “some stories of elder abuse.” He was sympathetic toward the elderly and, as an attorney, devotes part of his practice to helping them with matters involving Social Security and “MassHealth” applications. A member of his family had been raped. The judge questioned him as to each of these matters and the prospective juror declared that none would affect his ability to be fair in this case. The judge acted within his discretion in finding the juror honest and concluding that he would be fair and unbiased. See Commonwealth v. Leahy, 445 Mass. 481, 494 (2005) (“jurors’ assertions of impartiality should be accepted by the judge unless extraordinary circumstances give some reason to question such assertions”). The fact that the juror sympathized with the elderly and that a family member has been a victim of violence does not suggest that he would not be fair in deciding whether the Commonwealth met its burden of proving beyond a reasonable doubt that the defendant committed the crimes charged.

Juror no. 49 characterized the crime as “reprehensible” but “absolutely” agreed that the reprehensible nature of the crime “has nothing to do with the issue of whether this defendant is guilty or not guilty,” and assured the judge he could be fair. Because the issue at trial was whether the defendant committed the murder, not whether the killing of an elderly woman in her home is reprehensible, the judge correctly denied the challenge for cause.

Juror no. 12 was the soccer coach of the daughter of a Ware police officer who testified at trial. In answer to the judge’s questions, he said he would be impartial in evaluating the testimony of the police witness and knew of no reason why he could not be fair. “Where, as here, the judge, who had the opportunity to observe the prospective juror, makes a determination that the juror is indifferent after exploring the grounds for a possible claim that the juror was not impartial, we cannot conclude, in the absence of any affirmative evidence to the contrary, that the judge abused his discretion.” Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978).

Juror no. 123 was a fire fighter but knew nothing about the case except that the defendant was charged with murder and arson. He said that the charge of arson would not affect his ability to be fair. In Commonwealth v. Ascolillo, 405 Mass. 456, 460-461 (1989), we declined to “adopt a rule that the mere fact that a prospective juror is a police officer, in the absence of a showing of prejudice or partiality, or connection with the particular facts involved at trial, would form the basis to sustain a challenge for cause.” We decline to adopt a comparable rule where the prospective juror is a fire fighter in an arson case. We conclude that the judge did not abuse his discretion in denying the challenge for cause.

4. Relief pursuant to G. L. c. 278, § 33E. We have reviewed the entire record pursuant to our duty under G. L. c. 278, § 33E, and find no error that produced a substantial likelihood of a miscarriage of justice, nor any other reason to order a new trial or to reduce the defendant’s murder convictions to a lesser degree of guilt.11

Judgments affirmed.

1The defendant also was convicted of unarmed burglary and larceny under $250 for breaking and entering the Ware home of Frank Gurka and stealing cash and a glass collectible during the evening of September 17 and 18, 2005. The defendant was found not guilty of an attempted burglary on October 10, 2005, at the Gurka residence. The defendant was sentenced to life imprisonment without the possibility of parole on the murder conviction, and from twenty to thirty years in the State prison on the armed burglary conviction, to be served from and after his life sentence for murder. He was also sentenced to from eighteen years to twenty years on the arson and unarmed burglary convictions, and one year in a house of correction on the misdemeanor larceny conviction, each to be served concurrently with each other and with the sentence for armed burglary from and after the life sentence.

2At trial, an identification procedure was conducted in which the defendant was seated with spectators in the rear of the court room and Sophie Cloutier left the witness stand and walked to the rear of the court room to see if she could identify the person she had seen from a distance staring at the victim’s home. Cloutier said, “Maybe that one over there. . . . The second one,” indicating the defendant, but then added, “I don’t know if it’s true or not . . . I didn’t see him that close.”

3The only forensic evidence left behind in the burglaries of the Gurka residence and the victim’s home that linked the defendant to the crimes was the unsmoked cigarette lodged between the screen and kitchen window of the victim’s home.

4On or around the burnt bed, the police found various papers, including binders from a coin collection, and perfume bottles with the stoppers removed.

5The defendant also told a friend in June, 2006, that, if he were to be seen by a resident of a home while he was committing a burglary, “I’d kill them like I killed the old lady in Ware.”

6The defendant’s description did not accurately reflect the forensic evidence from the crime scene. The cigarette that was found between the screen and window was unsmoked, and there were no burn marks on the screen. The victim was found dead on the sofa in her living room and the bloodstain analysis indicated that she was reclining when she was repeatedly struck in the head with a weapon.

7In Holmes v. South Carolina, 547 U.S. 319 (2006) (Holmes), the defendant proffered evidence at a pretrial hearing that a third party was in the victim’s neighborhood at the time of the assault, and had told four other witnesses that he committed the crimes or knew that the defendant was innocent of those crimes. Id. at 323. The South Carolina Supreme Court affirmed the trial judge’s exclusion of this evidence because there was such strong evidence of the defendant’s guilt that the proffered evidence did not raise a reasonable inference as to the defendant’s innocence. Id. at 323-324. The United States Supreme Court vacated the defendant’s convictions and remanded the case for a new trial, concluding that the admission of third-party culprit evidence depends on the probative value of the exculpatory evidence and the risk of prejudice or confusion, not the strength of the prosecution’s evidence. Id. at 329-331. As will be shown, the probative value of the proffered evidence in the instant case falls far short of the probative value of the evidence in Holmes.

8Joseph Brown was charged with receiving stolen property based on his receipt of the Apollo 15 collectible bottle.

9The jury properly did not learn that the defendant sought to call Gregory Babb as a witness, that his attorney informed the judge that Babb intended to invoke his rights under the Fifth Amendment to the United States Constitution, and that the judge, after an ex parte side bar conference (the transcript of which was impounded), ruled that Babb had a valid Fifth Amendment privilege.

11Because the defendant was convicted of murder in the first degree on the theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder, the judge did not err in sentencing the defendant on the armed burglary conviction, even though it was a lesser included offense of the felony-murder. In essence, the judge sentenced the defendant to life imprisonment without the possibility of parole on the first two theories, not on the felony-murder theory, so the sentences were not duplicative. See Commonwealth v. Pagan, 440 Mass. 84, 93 (2003); Commonwealth v. Jackson, 428 Mass. 455, 467 (1998).

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Civil action commenced in the Superior Court Department on April 2, 2009.

The case was heard by Elizabeth M. Fahey, J.

Will Evans for the defendant.

Carol Wolff Fallon for the plaintiff.

MILKEY, J. In 2006, Holyoke Community College (the college) posted a position for an assistant professor of nutrition. Elizabeth Hebert, who many years earlier had been a tenured faculty member at the college, received an initial interview for the position. However, she did not advance to the final round, and the college eventually hired one of the three candidates who did. Based on a grievance that Hebert’s union, Massachusetts Teachers Association/Massachusetts Community College Council/National Education Association (union), pressed on her behalf, an arbitrator ruled that the college violated its collective bargaining agreement by choosing its preferred candidate over Hebert. He ordered the college to appoint Hebert to the posted position with full back pay, or to pay broadscale damages on an ongoing basis. A Superior Court judge vacated the arbitrator’s award, and the union seeks to have it reinstated on appeal. We agree with the judge that the arbitrator exceeded his authority in some respects, but we conclude that the case must be remanded for additional proceedings.

Background.1 Hebert has a “master’s degree in food and nutrition.”2 In 1981, she began working as a “program coordinator” in the dietetic technology program at the college. She was promoted to assistant professor in 1986, and she obtained tenure in 1988. In May of 1989, the college eliminated the entire dietetic technology program because of severe budgetary issues, and Hebert therefore lost her position. The college offered her a “retraining sabbatical” designed to qualify her for a position in the biology department. She initially accepted that offer, but eventually decided that she did not want to leave the nutrition field. Therefore, she resigned her position at the college.3 However, at many points over the ensuing years she taught courses at the college as an adjunct professor.

On January 6, 2006, the college posted the assistant professor position in nutrition. The posting listed various “required” and “preferred” qualifications. Among the required qualifications was that the candidate have a “[m]aster’s degree in Nutrition or closely related field.”

Hebert applied for the posted position, and she was among the five candidates asked to make presentations to the search committee. The committee recommended three finalists, including Hebert. In the committee’s report, the chair had particularly positive things to say about Hebert’s candidacy, referring to her as “exceed[ing] all candidates [in the pool] in required and preferred job qualifications.” However, the college decided not to hire from the existing pool. Instead, it reposted the position on December 21, 2006. Although the new posting was slightly modified, it continued to list having a master’s degree as a “required” qualification. The membership of the search committee had changed in the intervening months; for example, the chair, who had been a booster of Hebert’s in the earlier process, no longer was on the search committee.

Hebert reapplied, and, as before, made the search committee’s initial cut and was brought in for an interview. The reconstituted search committee asked each candidate a set series of questions, which was a different format than had been used in the earlier search. Hebert found the process “very strange,” and she acknowledged to the arbitrator that it “threw her a bit.” She did not advance further in the process.

The search committee chose three finalists, including Clement Ameho, who held a Ph.D in nutrition from Tufts University; Laura Hutchinson, a Ph.D candidate at the University of Massachusetts who had completed her course work and comprehensive examinations, but had not yet finished her doctoral dissertation; and Kim Teupker, who held a master’s degree in nutrition and who –- in the arbitrator’s words — had “professional and teaching experience similar to Hebert’s.” The college eventually hired Hutchinson for the position.4

On May 18, 2007, the day that Hebert learned that she was not a finalist, she filed a grievance claiming that the college had violated the collective bargaining agreement then in effect by having “acted in an arbitrary, capricious, and unreasonable manner in failing to offer her a second interview.” After the college denied the grievance on multiple grounds and mediation proved unsuccessful, the union requested that the dispute be arbitrated.

The assigned arbitrator held a hearing on November 20, 2008, and he ruled in Hebert’s favor by a decision dated March 2, 2009. With the college having completed its hiring process after Hebert had filed her grievance, the arbitrator framed the issues before him as follows:

“Is the grievance of Elizabeth Hebert arbitrable?

“If so, did the College violate the parties’ collective bargaining agreement by failing to appoint the grievant to a full-time faculty position in the Nutrition Department?

“If so, what shall be the remedy?”

The arbitrator determined that the grievance was arbitrable, because, having lost her teaching position two decades earlier, Hebert was a “retrenched” union member who enjoyed certain preferences under the collective bargaining agreement.5 He concluded that Hebert no longer was entitled to some of these preferences, either because of the sheer passage of time or because she had not followed required notification procedures in the interim.6

However, the arbitrator found that Hebert still was entitled to a preference with regard to article XVI of the collective bargaining agreement, the general provision governing the “filling of vacancies.” Section 16.02 of the collective bargaining agreement requires the college president or designee to fill any vacancies with unit members within the college “when in the professional judgment of the President of the College or designee such unit members are the best-qualified applicants.” It further states that retrenched unit members must be given first preference “[i]f the President of the College or designee determines that two (2) or more applicants are equally best qualified.”

After reviewing their respective qualifications, the arbitrator found Hebert better qualified than Hutchinson, and “[a]t the very least, Hebert should have been found [by the college] to be equally qualified as Hutchinson.” Indeed, he determined that Hutchinson was per se unqualified given that, although she had completed her doctoral course work and examinations, she did not possess a master’s degree. Based on this, the arbitrator concluded that, in choosing Hutchinson over Hebert, the college failed to give Hebert preference as a “retrenched faculty member” and thereby violated the collective bargaining agreement.

As to remedy, the arbitrator ordered the college to hire Hebert for the posted position (plus back pay). Recognizing doubt as to whether he could order the college to hire Hebert, the arbitrator further ordered that, in the event that his preferred remedy was struck, the college must pay Hebert the full salary of the position for as long as that job continued to exist. A Superior Court judge summarily vacated this award, stating: “Hebert is not entitled to reinstatement and not entitled to retrenchment. Where it is clear that the arbitrator exceeded his authority, and [his award] is against public policy, his decision must be VACATED.”

An arbitrator exceeds his authority when he intrudes upon decisions that cannot be delegated, but that are instead left by statute to the exclusive managerial control of designated public officials. Higher Educ. Coordinating Council/Roxbury Community College v. Massachusetts Teachers’ Assn./Mass. Community College Council, 423 Mass. 23, 27-31 (1996) (hereinafter Roxbury Community College). “This gloss on public sector collective bargaining statutes is deemed necessary in order that the collective actions of public employees do not distort the normal political process for controlling public policy.” Boston Teachers Union, Local 66 v. School Comm. of Boston, 386 Mass. 197, 211 (1982). However, the principle of nondelegability is to be applied only so far as is necessary to preserve the college’s discretion to carry out its statutory mandates. Thus, although the principle applies to the administration of community colleges, “unless the arbitrator’s decision infringed on an area of educational policy reserved for the exclusive judgment of the administrators of the college, it cannot be disturbed.” Roxbury Community College, supra at 27.

Section 22 of G. L. c. 15A, inserted by St. 1991, c. 142, § 7, specifically delegates to the community college administrators the responsibility to “appoint, transfer, dismiss, promote and award tenure to all personnel of said institution.”7 Few issues are as central to setting educational policy as choosing which faculty members to hire or promote. See id. at 28 (“It has been observed that ‘[t]he success of a school system depends largely on the character and the ability of the teachers. Unless a school committee has authority to employ and discharge teachers it would be difficult to perform properly its duty of managing a school system”), quoting from Davis v. School Comm. of Somerville, 307 Mass. 354, 362 (1940). Not surprisingly, the Supreme Judicial Court long has recognized that “specific appointment determinations” cannot be delegated to an arbitrator. School Comm. of Holbrook v. Holbrook Educ. Assn., 395 Mass. 651, 655 (1985), quoting from Boston Teachers Union, Local 66 v. School Comm. of Boston, supra. See School Comm. of Boston v. Boston Teachers Union, Local 66, 25 Mass. App. Ct. 903, 904 (1987) (recognizing that school committee’s duty “to ascertain the qualifications of teachers to be appointed to positions” is “nondelegable”).8

These principles apply with at least equal force in the context of higher education. Roxbury Community College, supra at 31.9 The need for college administrators to be able to exercise judgment in conducting faculty searches is reinforced by the discretionary nature of evaluating the candidates. Hiring faculty, like granting tenure, “necessarily hinge[s] on subjective [judgments] regarding the applicant’s academic excellence, teaching ability, creativity, contributions to the university community, rapport with students and colleagues, and other factors that are not susceptible of quantitative measurement.” Berkowitz v. President & Fellows of Harvard College, 58 Mass. App. Ct. 262, 269 (2003), quoting from Kumar v. Trustees, Univ. of Mass., 774 F.2d 1, 12 (1st Cir. 1985), cert. denied, 475 U.S. 1097 (1986) (Campbell, C.J., concurring).

While a college cannot delegate specific appointment decisions, it can bind itself to the process that is to be used in making such decisions, including the criteria by which the candidates will be judged. See, e.g., School Comm. of Holbrook, supra (“bargained-for procedures governing the appointment and reappointment of teachers, such as posting and evaluation requirements, are specifically enforceable”); School Comm. of New Bedford v. New Bedford Educators Assn., 9 Mass. App. Ct. 793, 798 (1980) (same principle). Sorting out when arbitrators tread into the forbidden realm of nondelegable decision-making, or are instead properly enforcing agreed-to procedures, requires nuanced analysis on a case-by-case basis. See, e.g., School Comm. of Boston v. Boston Teachers Union, Local 66, Am. Fedn. of Teachers (AFL-CIO), 372 Mass. 605, 614 (1977).

Liability. Following these principles, we conclude that it is beyond the authority of an arbitrator to question the judgment that a college administration exercises in evaluating candidates for a faculty appointment, regardless of whether the applicable collective bargaining agreement can be interpreted as subjecting such issues to arbitration.10 Put differently, whether a college administration erred in exercising its judgment as to which candidate was best qualified is not an arbitrable issue.

See Department of State Police v. Massachusetts Org. of State Engrs. & Scientists, 456 Mass. 450, 455-461 (2010) (absent alleged procedural violation or discrimination based on membership in constitutionally protected class, State police colonel’s decision to terminate chemist was not arbitrable).11 If an arbitrator were allowed to overturn a college administration’s discretionary judgments on how to rank job candidates, then, absent proof of fraud, we would be compelled to let the arbitrator’s decision stand regardless of the reason, if any reason at all, the arbitrator gave for finding an abuse of discretion. This would render the arbitrator the ultimate decision maker on faculty hiring decisions, a result that is plainly inconsistent with G. L. c. 15A, § 22.

Accordingly, to the extent that the arbitrator here substituted his judgment for that of the college administration in making his own evaluation of the job candidates, that decision cannot stand. We are not done, however, because the union argues that the arbitrator’s decision can be sustained without intruding upon matters of judgment. Specifically, it contends that the college was not free to choose Hutchinson over Hebert because Hutchinson was per se unqualified for the posted position given that she lacked a master’s degree (a “required” qualification, as propounded by the college). See School Comm. of New Bedford, 9 Mass. App. Ct. at 798 (arbitrator’s review of whether school committee hired candidate who did not meet posted minimum job requirements, including that candidate possess master’s degree, does “not impermissibly limit the committee’s discretion”).

The college counters that the arbitrator’s reasoning lacks an appreciation for how the academic world weighs such credentials. It suggests that being a doctoral candidate with “all but dissertation” (ABD) status is generally considered to provide higher rank than having a mere master’s degree, and that its judgment in this regard cannot be second guessed. This argument is not without some force. However, we ultimately conclude that, having drafted its posting expressly to require that candidates have a master’s degree, the college was not free to determine that a candidate who had obtained neither a master’s degree nor a higher degree nevertheless possessed “better” credentials than one with a master’s degree.12 We note that the college easily could have written its job posting so as to require a “master’s degree or equivalent,” a phrase that the college used in the collective bargaining agreement.13 Having established the minimum job requirements as it did, the college had a good faith obligation to employ them, and it lay within the arbitrator’s purview to determine whether the college had done so. School Comm. of Newton v. Newton Sch. Custodians Assn., Local 454, SEIU, 438 Mass. 739, 748-749 (2003) (although principal retains “actual, first-line determination of whom to hire,” he is bound to make “good-faith effort” to apply criteria to which he has agreed). See School Comm. of New Bedford, supra (school committee bound itself to follow its own appointment criteria). In sum, although the arbitrator was without authority to substitute his judgment for that of the college administration, insofar as he ruled that the college violated the collective bargaining agreement by selecting someone who did not meet the minimum requirements set forth in the posting, his ruling cannot be disturbed.14

Remedy. It does not follow, however, that the arbitrator then could appoint Hebert an assistant professor against the wishes of the college administration. The cases consistently recognize that arbitrators do not have authority to grant such relief, because it would directly intrude upon the appointment authority left to the exclusive purview of the college administration. See, e.g., School Comm. of Holbrook, 395 Mass. at 655 (even where arbitrator’s ruling that school committee violated collective bargaining agreement by not appointing grievant to posted position, arbitrator had no authority to compel appointment).15 The interference with the college administration’s prerogative is especially pronounced, given that –- even without Hutchinson considered eligible for the posted search –- there was at least one other candidate in the mix who did meet the minimum requirements and whom the college administration determined was better qualified than Hebert.16 But even if there were no alternative candidates available, the college administration would remain free to pass over the entire pool of eligible candidates (as it already once did) and either to repost the position or to leave it vacant.

What relief then is appropriate to remedy the procedural violation that occurred? As the college acknowledged at oral argument, if it erred by hiring someone who did not meet the posted job requirements, then the obvious way to address the problem directly would be to start the process again. Boston, Boston Pub. Library v. Professional Staff Assn., 61 Mass. App. Ct. 105, 111-113 (2004) (where library selected candidate who did not meet minimum posted requirements, remedy was to vacate selection and allow reposting). A new search would give all potential job applicants a fair opportunity to apply (thus mooting the procedural violation), while preserving to the college administration its exclusive authority to determine the hiring needs of the college and to make specific appointment decisions.17

However, reposting makes sense only if the college intends to retain the position, something that cannot be determined based on the current record.18 Moreover, although the union would be entitled to have the position reposted if the college intends to fill it, we are hesitant to assume that — even in that scenario — reposting would necessarily be in the union’s (or Hebert’s) interest.19 We need not resolve those questions, but simply direct that, in the event the college intends to maintain the contested position, the union is entitled to have it reposted, using whichever criteria the college administration determines best serve the college’s needs, consistent with its statutory mandates.

The question remains whether Hebert should be entitled to any damages. As the Supreme Judicial Court often has recognized, “A[n] award of damages ‘is separable’ from an arbitrator’s mistaken conclusion that a particular decision by [school administrators] is arbitrable.” Roxbury Community College, 423 Mass. at 33, quoting from School Comm. of Holbrook, 395 Mass. at 657. Therefore, “it [is] within [the arbitrator’s] power to award damages for the college’s violation of the agreement, so long as the damages were in an amount that would not ‘have the effect of compelling reinstatement.'” Ibid. The damages that the arbitrator issued here plainly run afoul of this last proviso. Indeed, the arbitrator recognized that his award could coerce the college to appoint Hebert because doing so would “result[] in the College actually getting something for the money it will otherwise have to spend for a purely monetary remedy.”

Although full-scale damages plainly exceed the arbitrator’s authority, this does not rule out the possibility of Hebert obtaining more limited damages. School Comm. of Holbrook, supra at 657-658 (award of one-year’s back pay upheld). What, if any, damages might be appropriate is, at this point, far from obvious given that the collective bargaining agreement expressly limits the compensation that an arbitrator can award for a breach of the agreement to “actual damages directly attributable to such breach.” Nevertheless, under the cases, the question of damages is one for the arbitrator to resolve so long as he does not exceed his authority. Ibid.

Conclusion. In light of the foregoing, we reverse the judgment vacating the arbitrator’s award. A new judgment shall enter reversing so much of the arbitrator’s award as ordered that Hebert be appointed with full back pay and benefits, or that she receive full pay for each year the position exists. The new judgment also should remand the case to the arbitrator for further proceedings consistent with this opinion.

2 The arbitrator’s decision does not identify at which university Hebert earned her master’s degree, and nothing elsewhere in the record reveals this.

3 As the arbitrator noted, there is a confusing paper trail as to whether Hebert’s resignation became effective in December of 1989 or October of 1990. Nothing turns on this fact.

4 According to a document included in the record appendix, the college offered the position to Hutchinson only after Ameho turned it down. The arbitrator does not mention that document, which was filed in Superior Court as an attachment to the college’s complaint for modification of the arbitration award, and it is not clear whether the document, or the underlying facts suggested by it, were before him.

5 The collective bargaining agreement defined “retrenchment” as “the discontinued employment of a unit member prior to the expiration of that unit member’s term of appointment through no fault or delinquency of that unit member, pursuant to Article XIX [the provisions applicable to retrenchment].”

6 Article XIX prohibits the college from filling a retrenched member’s position with someone else. That prohibition lasts for a period of four years, and even if the posted position were considered the same as the one from which Hebert was laid off, almost two decades had elapsed in the interim. Different sections of article XIX provide a retrenched unit member with fairly strong preferences for being “recall[ed]” for other positions at the college. The arbitrator concluded that Hebert was not eligible for these preferences because she had not complied with annual notification requirements that he concluded were prerequisites to being put on the “recall list.”

7 Section 22 delegates such decisions to the respective college’s board of trustees, although –- as was the case here -– the decisions are in practice carried out by the college’s president and his delegees subject to the board of trustees’ review. For the sake of simplicity, we will hereinafter refer to the “college administration.”

8 The Reform Act, St. 1993, c. 71, § 53, made school principals rather than school committees the principal decision makers in hiring decisions for their schools. See School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 759 (2003). This did not alter the principle of nondelegability.

9 In Roxbury Community College, the court found no need to “consider whether the finding that the grievant was qualified for [the] position . . . exceeded the arbitrator’s powers . . . because [the court] conclude[d] that the preliminary finding that a vacancy existed was improper.” 423 Mass. at 32-33. However, the court ruled that the principles of nondelegability recognized as applying to public elementary and secondary schools applied at the college level; indeed, the court observed that the statutory language delegating management authority to college administrations was “more emphatic and detailed” than the comparable language applicable to public elementary and secondary schools. Id. at 29.

10 The nondelegability doctrine renders interpretation of the collective bargaining agreement beside the point. Nevertheless, we note that the terms of the agreement easily can be read as congruent with the nondelegability doctrine. By its express terms, the preference on which Hebert relies comes into play only when the college president or designee (not an arbitrator) determines that two candidates are “equally best qualified.” It is undisputed that the college president did not find Hebert and Hutchinson “equally best qualified.”

12 It is possible that others with ABD status might have been deterred from submitting an application because of the way the college phrased the requirements. Whatever the precise norms of the academic world with respect to whether ABD status would ordinarily be considered superior to having a master’s degree, it is appropriate to hold the college to the requirements it posted.

determination that it was arbitrary and capricious for public library to conclude that applicant’s experience could be substituted for having master’s degree under an “exceptional instances” exception included in collective bargaining agreement).

14 On various grounds, the college argues that the arbitrator erred in determining that Hebert was still eligible for the preference under the terms of the collective bargaining agreement. The arbitrator’s determination to this effect is not open to our review, regardless of whether it is correct. See Concerned Minority Educators of Worcester v. School Comm. of Worcester, 392 Mass. 184, 187 (1984) (“absent fraud, we have no business overruling an arbitrator because we give a contract a different interpretation”).

16 Even if we take into account that the college’s first choice apparently turned the job down (see note 4, supra), the third finalist, Kim Teupker, still was available from all that appears in the record. Moreover, it is not even clear that Hebert was the college’s fourth choice in the process.

17 How specifically to fashion any reposting lies within the discretion of the college administration. See Boston, Boston Pub. Library, supra at 113 (arbitrator exceeded authority in setting pay grade of posting).

18 Whether to retain the position falls to the college administration. See Roxbury Community College, 423 Mass. at 32-33 (arbitrator has no authority to create vacancy); Boston, Boston Pub. Library, supra (reposting could be ordered only to extent that library wanted to retain position).

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Daniel P. Dain for zoning board of appeals of Chatham.

William F. Riley for Louis Hieb & another.

Michael D. Ford (Jeffrey M. Ford with him) for the plaintiffs.

SPINA, J. In June, 2006, the zoning board of appeals of Chatham (board) granted a special permit to Louis and Ellen Hieb (Hiebs) for the demolition, reconstruction, and expansion of their house located at 25 Chatharbor Lane in South Chatham (Hieb property). The plaintiffs, Brian and Carol Kenner (Kenners), owners of real property at 18 Chatharbor Lane (Kenner property), challenged the issuance of the permit by filing a complaint in the Land Court against the board and the Hiebs. In their answer, the Hiebs requested that the complaint be dismissed because the Kenners were not “aggrieved” parties within the meaning of G. L. c. 40A, § 17, and, therefore, had no standing to bring their action. After a trial, which included a view of the properties, a judge concluded that the Kenners lacked standing to challenge the issuance of the permit, and, even if they did have standing, they failed to show that the board had acted improperly. Judgment entered for the Hiebs. The Appeals Court reversed in an unpublished memorandum and order issued pursuant to its rule 1:28. See Kenner v. Zoning Bd. of Appeals of Chatham, 76 Mass. App. Ct. 1110 (2010). We granted the joint application for further appellate review filed by the Hiebs and the board. We conclude that the Kenners lacked standing to obtain judicial review of the board’s decision and, accordingly, need not reach the merits of this case.

1. Background. The Hieb property, which abuts the Atlantic Ocean, consists of 13,237 square feet, most of which is nonbuildable marshland. A single-family house is located on a portion of the approximately 2,200 square feet of the property that is suitable for building. The Kenner property lies to the north of the Hieb property, directly across Chatharbor Lane, such that the Hieb property is located between the Kenner property and the Atlantic Ocean. On the Kenner property is a single-family home. The special permit sought and secured by the Hiebs allows them to raze their existing house and construct in the same footprint a new house that will be seven feet taller than their existing one.

In considering the Kenners’ challenge to the issuance of the special permit, the judge stated that because the Kenners were abutters to the Hieb property, they were presumed to be “aggrieved persons” with standing to seek judicial review of the board’s decision. However, the judge continued, once the Hiebs challenged the Kenners’ standing, the Kenners were required to present credible evidence to substantiate their particularized claims of harm to their legal rights. This, in the opinion of the judge, the Kenners failed to do. The judge stated that the Kenners’ contentions that the increased height of the Hiebs’ new house would block light and ocean breezes to the Kenner property and would cause traffic problems in the neighborhood were either generalized concerns, not particular to the Kenners, or were speculative. As to the Kenners’ contention that the increased height of the Hiebs’ new house would obstruct the Kenners’ view of the ocean, the judge agreed that this constituted a claim of individualized harm and stated that § V.B.5 of the Protective By-Law of the Town of Chatham (2007) required the board to consider, when deciding whether to grant a special permit, the impact of a proposed structure on views, vistas, and streetscapes. However, the judge concluded that any impact of the increased height of the Hiebs’ new house on the Kenners’ view of the ocean was de minimis and, as such, was not sufficient to confer standing on the Kenners. Finally, the judge stated that the Kenners’ evidence pertaining to a purported diminution in the value of their property as a consequence of the Hiebs’ new house was unsound and speculative, particularly where their alleged loss of view was insignificant.

2. Standing based on obstruction of ocean view. The Kenners first contend that the Hiebs’ new house, which will be seven feet taller than their existing house, will obstruct the Kenners’ view of the ocean. They assert that this negative impact on their property constitutes a particularized harm, separate from the general concerns of the neighborhood as a whole. As such, the Kenners continue, they are “aggrieved persons” and, therefore, have standing to challenge the board’s issuance of a special permit to the Hiebs. We disagree.

General Laws c. 40A, § 17, states that “[a]ny person aggrieved by a decision of the [zoning] board of appeals . . . may appeal to the land court department . . . by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk.” A “person aggrieved” is one who “suffers some infringement of his legal rights.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996), citing Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 430 (1949). As pertinent to the circumstances here, landowners directly across the street from a property on which changes are proposed enjoy a rebuttable presumption that they are persons aggrieved. See Marashlian v. Zoning Bd. of Appeals of Newburyport, supra at 721-722. See also G. L. c. 40A, § 11 (defining “parties in interest” entitled to notice of public hearing under zoning law as including “owners of land directly opposite [subject property] on any public or private street”).

If standing is challenged, and evidence is offered in support of such challenge, the jurisdictional question will be decided on “all the evidence with no benefit to the plaintiffs from the presumption” of aggrievement. Marotta v. Board of Appeals of Revere, 336 Mass. 199, 204 (1957). See Marashlian v. Zoning Bd. of Appeals of Newburyport, supra at 721. See also Watros v. Greater Lynn Mental Health & Retardation Ass’n, 421 Mass. 106, 111 (1995) (where no evidence presented to rebut plaintiffs’ presumption of standing, plaintiffs entitled to rely entirely on presumed status as aggrieved parties to challenge grant of special permit). A party challenging the presumption of aggrievement “must offer evidence ‘warranting a finding contrary to the presumed fact.'” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 34 (2006), quoting Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 258 (2003). “Once the presumption is rebutted, the burden rests with the plaintiff to prove standing [i.e., aggrievement], which requires that the plaintiff ‘establish — by direct facts and not by speculative personal opinion — that his injury is special and different from the concerns of the rest of the community.'” Standerwick v. Zoning Bd. of Appeals of Andover, supra at 33, quoting Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129, 132 (1992).

“A review of standing based on ‘all the evidence’ does not require that the factfinder ultimately find a plaintiff’s allegations meritorious. To do so would be to deny standing, after the fact, to any unsuccessful plaintiff. Rather, the plaintiff must put forth credible evidence to substantiate his allegations” (emphasis added). Marashlian v. Zoning Bd. of Appeals of Newburyport, supra. See Jepson v. Zoning Bd. of Appeals of Ipswich, 450 Mass. 81, 91 (2007); Hoffman v. Board of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804, 809 (2009); Central St., LLC v. Zoning Bd. of Appeals of Hudson, 69 Mass. App. Ct. 487, 492 (2007). Standing essentially becomes a question of fact for the judge. See Marashlian v. Zoning Bd. of Appeals of Newburyport, supra. “[W]hether a party is ‘aggrieved’ is a matter of degree . . . and the variety of circumstances which may arise seems to call for the exercise of discretion rather than the imposition of an inflexible rule.” Paulding v. Bruins, 18 Mass. App. Ct. 707, 709 (1984), quoting Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624, 629 (1977). The judge’s ultimate findings on this issue will not be overturned unless shown to be clearly erroneous.3 See Marashlian v. Zoning Bd. of Appeals of Newburyport, supra at 722; Central St., LLC v. Zoning Bd. of Appeals of Hudson, supra. See also Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996).

Here, the Hiebs challenged the standing of the Kenners by offering evidence to rebut the Kenners’ presumption of aggrievement based on their claim that the Hiebs’ new house would block the Kenners’ view of the ocean. There was uncontroverted testimony from Karen Kempton, the Hiebs’ architect, that the house was redesigned several times in order to lower the ridge height of the new roof such that it would be only seven feet taller than the structure it replaced. She also provided unrebutted testimony, supported by architectural renderings of the Hiebs’ new house that were admitted in evidence, that the ridge height of the new roof would be 34.3 feet above sea level. David Clark, a professional engineer, gave uncontroverted testimony that the site plan for the Kenners’ house indicated that the top of its foundation was 32.5 feet above sea level. Moreover, several photographs showing various perspectives on the Hieb and Kenner properties were admitted in evidence. Once the Hiebs offered this evidence to negate the presumption that the Kenners were aggrieved persons with standing to challenge the issuance of the special permit, which the judge concluded the Hiebs had successfully done, the Kenners had the burden of proving, by direct facts and not speculative evidence, that they would suffer a particularized injury as a consequence of the increased height of the Hiebs’ house.

A person aggrieved under G. L. c. 40A must assert “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493 (1989). See Standerwick v. Zoning Bd. of Appeals of Andover, supra at 27. The right or interest asserted by a plaintiff claiming aggrievement must be one that G. L. c. 40A is intended to protect. See id. at 27-28; Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, supra at 430-431. Generally speaking, concerns about the visual impact of a proposed structure on an abutting property are insufficient to confer standing. See Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141, 146 (2001). See also Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52, 55 (2005) (plaintiff’s concern about visual impact of condominium development on nearby wooded hill not sufficient to impart standing); Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208, 213 (2003) (plaintiff’s concern about aesthetic deterioration caused by construction of 135-foot communications tower beyond scope of interests protected by G. L. c. 40A); Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, supra (concerns about diminished aesthetic views are “matters of general public concern” and are not basis for standing).

However, where a municipality’s zoning bylaw specifically provides that the zoning board of appeals should take into consideration the visual impact of a proposed structure, this “defined protected interest may impart standing to a person whose impaired interest falls within that definition.” Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, supra at 146-147 (standing conferred on abutter to challenge issuance of special permit to church for construction of steeple atop temple where Belmont zoning bylaw provided that “[v]iews from public ways and developed properties should be considerately treated in the site arrangement and building design”); Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685, 688 (1994) (for summary judgment purposes, standing conferred on plaintiffs to challenge issuance of special permit to Cellular One for construction of 190-foot tower where Plymouth zoning bylaw provided that proposed structure could not in any way detract from visual character or quality of neighborhood, and plaintiffs established direct visual impact of proposed tower not only on home but also on neighborhood).

Here, § V.B.5 of the zoning bylaw states that the board, when deciding whether to grant a special permit, shall consider, among other things, the “[i]mpact of scale, siting and mass on neighborhood visual character, including views, vistas and streetscapes.” This language does not suggest that the zoning bylaw was designed simply to protect individual homeowners’ views of the ocean from their own property. Rather, § V.B.5 addresses the visual impact of a proposed structure, or of changes to an existing structure, on the visual character of the neighborhood as a whole. Thus, in order for a plaintiff to establish standing based on the impairment of an interest protected by Chatham’s zoning bylaw, the plaintiff would need to show a particularized harm to the plaintiff’s own property and a detrimental impact on the neighborhood’s visual character. See Monks v. Zoning Bd. of Appeals of Plymouth, supra at 688-689. As will be discussed shortly, the Kenners did not put forth credible facts to support their allegation that the increased height of the Hiebs’ new house will block their view of the ocean. Moreover, apart from the Kenners’ unsubstantiated claims and personal opinions, there was no evidence that the increased height of the Hiebs’ new house would have a detrimental impact on the visual character of their neighborhood, the interest that the zoning bylaw is designed to protect.

Aggrievement requires a showing of more than minimal or slightly appreciable harm. See, e.g., Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, supra at 147 (plaintiff had standing under zoning bylaw where “towering” church steeple would be visible from most, if not all, of her property, both during day and when lit at night); Denneny v. Zoning Bd. of Appeals of Seekonk, supra at 211 (plaintiff must be able to demonstrate factually that there has been “some” infringement of legal rights); Rogel v. Collinson, 54 Mass. App. Ct. 304, 315 (2002) (standing to appeal from denial of request for enforcement of zoning bylaw with respect to commercial trail rides conferred where “palpable” harms caused by odors and dust produced by horses); Rinaldi v. Board of Appeal of Boston, 50 Mass. App. Ct. 657, 660 (2001) (burden of establishing standing not satisfied where proposed changes to buildings’ use unlikely to cause “significant” increase in traffic and loss of parking spaces); Butts v. Zoning Bd. of Appeals of Falmouth, 18 Mass. App. Ct. 249, 253 (1984) (intervener had standing as person aggrieved where claim that ocean view would be “completely blocked” by new structure on abutting property not challenged). The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy. To conclude otherwise would choke the courts with litigation over myriad zoning board decisions where individual plaintiffs have not been, objectively speaking, truly and measurably harmed. Put slightly differently, the analysis is whether the plaintiffs have put forth credible evidence to show that they will be injured or harmed by proposed changes to an abutting property, not whether they simply will be “impacted” by such changes.

Here, Carol Kenner testified as to her personal opinion that the increased height of the Hiebs’ new house “will have an impact on [the] views and vistas” that the Kenners enjoy from the deck of their home.4 Similarly, Brian Kenner testified that the increased height of the Hiebs’ new house will diminish significantly their enjoyment of that property in terms of what the Kenners look at when they sit either at their dining room table or on their screened porch. The Kenners introduced two photographs taken by their neighbor, Steven Wardle, while he stood on the Kenners’ porch, looking out toward the ocean. Superimposed on each photograph was a transparent box that purported to show the alleged obstruction of the Kenners’ ocean view. On cross-examination, Brian Kenner testified that it was his understanding that Wardle configured the size of the transparent boxes based on Wardle’s estimated measurements of the Hiebs’ existing home and their proposed new house. Kenner further testified on cross-examination that Wardle’s occupation was that of a jeweler.

The judge found that the Hiebs’ new house would have the same location footprint and setback as the existing structure, and the increase in height of the new house would be only seven feet. The judge stated that the evidence showed that the increased height of the new house would have a de minimis impact on the Kenners’ view of the ocean. The judge had the benefit of a view, which put him in a better position than we to evaluate the potential impact of the increased height of the Hiebs’ new house on the Kenner property. Based on our review of the record, including the photographs, we cannot conclude that the judge’s ultimate finding that the Kenners were not aggrieved persons such that they had standing to challenge the board’s issuance of a special permit to the Hiebs was clearly erroneous.

3. Standing based on diminution in property value. Related to the Kenners’ contention that the increased height of the Hiebs’ new house will block their view of the ocean is their claim that an obstructed ocean view diminishes the value of their property. Diminution in the value of real estate is a sufficient basis for standing only where it is “derivative of or related to cognizable interests protected by the applicable zoning scheme.” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 31-32 (2006). See Central St., LLC v. Zoning Bd. of Appeals of Hudson, 69 Mass. App. Ct. 487, 492 (2007). Zoning legislation “is not designed for the preservation of the economic value of property, except in so far as that end is served by making the community a safe and healthy place in which to live.” Tranfaglia v. Building Comm’r of Winchester, 306 Mass. 495, 503-504 (1940). “To untether a claimed diminution in real estate values from an interest the zoning scheme seeks to protect would permit any abutter who claims that any change in property use would diminish the value of property to obtain standing to challenge a zoning decision.” Standerwick v. Zoning Bd. of Appeals of Andover, supra at 32. Conferring standing “in such circumstances would permit any plaintiff to make an ‘end run’ around the rigorous standing requirements we have consistently recognized.” Id., citing Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 431 (1949). Given that, here, the Kenners’ view of the ocean is not an interest protected by the town of Chatham’s zoning bylaw, and that the judge concluded, in any event, that any impact on their ocean view would be de minimis, the alleged diminution in value of the Kenner property is not a basis for standing.5

4. Standing based on traffic concerns. The Kenners contend that they have standing to challenge the board’s granting of a special permit to the Hiebs based on traffic concerns. More particularly, the Kenners assert that the Hiebs’ plan to build a retaining wall along the front of their property will make it impossible for two vehicles to pass each other on Chatharbor Lane such that one will have to back up into the Kenners’ driveway or over their property in order to allow the other to pass. Section V.B.8 of the zoning bylaw states that the board, when deciding whether to grant a special permit, shall consider, among other things, the “[i]mpact on traffic flow and safety.” As such, the Kenners’ traffic concerns are within the scope of the zoning laws. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 722 (1996); Perez v. Board of Appeals of Norwood, 54 Mass. App. Ct. 139, 139-140 n.3 (2002); Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372, 376-377 (1988). However, the judge found that the Kenners’ allegations did not rise above the level of speculation and, therefore, did not constitute a basis for standing. We cannot conclude that the judge’s ultimate finding on this issue was clearly erroneous.6

5. Conclusion. The Kenners did not have standing to obtain judicial review of the board’s decision to grant the Hiebs a special permit for the demolition, reconstruction, and expansion of their house. As such, the Land Court lacked subject matter jurisdiction over the Kenners’ action. See Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699, 703 (1998). The judgment below is vacated, and this case is remanded to the Land Court for entry of a judgment dismissing the Kenners’ complaint.

3“A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160-161 (1977), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). “The authority of an appellate court, when reviewing the findings of a judge as well as those of a jury, is circumscribed by the deference it must give to decisions of the trier of the fact, who is usually in a superior position to appraise and weigh the evidence. The question for the appellate court under Rule 52 (a) is not whether it would have made the findings the trial court did, but whether ‘on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed.'” Building Inspector of Lancaster v. Sanderson, supra at 161, quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969).

5The judge did not find credible the Kenners’ expert witness, Stephen De Castro, a certified real estate appraiser, on the basis that his analysis failed to compare houses in the immediate neighborhood. The judge stated that De Castro’s analysis was unsound and speculative, and that a property owner is not entitled to bring an action based on diminution in value deriving from an insignificant loss of ocean view.

6Similarly, to the extent not already discussed, the judge’s findings that the Kenners presented only generalized concerns and speculation that the increased height of the Hiebs’ new house will overshadow the Kenner property were not clearly erroneous.

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

BOTSFORD, J. The plaintiff Joulé Technical Staffing, Inc. (Joulé), employed the defendant, Randi Simmons, from 2008 to 2009.3 Both were parties to an employment agreement containing an arbitration provision that purported to cover claims of employment discrimination expressly. Simmons was terminated from her position in July, 2009. Simmons, who claims that her termination was based on discrimination and retaliation by Joulé, did not file a claim for arbitration under the arbitration provision, but did file a complaint of discrimination with the Massachusetts Commission Against Discrimination (MCAD). In response, Joulé filed in the Superior Court a complaint and a motion to compel arbitration of Simmons’s discrimination claim. Before us is Joulé’s interlocutory appeal from the order of a Superior Court judge that in principal part denied Joulé’s motion to compel arbitration and stayed all further proceedings in the Superior Court case pending the outcome of the MCAD proceeding.

We conclude that pursuant to G. L. c. 151B, § 5, the MCAD may conduct its own, independent proceeding based on Simmons’s complaint. With respect to Joulé and Simmons, however, if the arbitration provision in Simmons’s employment agreement is valid — an issue that remains to be resolved — Joulé has a right to compel arbitration of a dispute between it and Simmons concerning her claim. Accordingly, we vacate the order of the Superior Court and remand for further proceedings.4

1. Facts and procedural history.5 Joulé is in the business of providing staffing and business systems support to companies in various States. Joulé hired Randi Simmons for its Boston office in February, 2008, as “selling branch manager.” In accepting the position, Simmons turned down another full-time job offer with another company. At some point after she began to work for the company,6 Joulé provided Simmons with a document titled “Employment Agreement with Confidentiality, Non-Competition, and Arbitration Provisions” (employment agreement, or agreement). The agreement contains an arbitration provision, quoted in the margin.7 Simmons had not received a copy or been informed of the employment agreement before starting her job. The agreement provides that Simmons had a right to consult an attorney prior to signing it, but that she would not “be offered employment until [she] sign[ed] and return[ed] this [a]greement.” Simmons did not sign the agreement immediately, but rather delayed until a “specific request was made for it by the human resources department,” because she “felt apprehensive and uncomfortable about certain restrictions therein.”

At the time Simmons was hired and thereafter presented with the employment agreement, she was pregnant, and the baby was born in due course. Simmons alleges that she was subjected to a hostile work environment and was denied a promotion and salary increase because of Joulé’s biases against pregnant women and against women with children. She complained about the issue to Kristin Motta Zwickau, the director of Joulé’s Boston office. On July 30, 2009, Joulé terminated Simmons’s employment. On August 25, 2009, Simmons filed a complaint with the MCAD asserting discrimination on the basis of sex and pregnancy in violation of G. L. c. 151B, §§ 4 (1) and (11A); G. L. c. 149, § 105D; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2006) (Title VII); and retaliation in violation of G. L. c. 151B, § 4 (4). As previously stated, Simmons did not initiate arbitration proceedings pursuant to the arbitration provision in the employment agreement. On November 19, 2009, Joulé filed its complaint and motion to compel arbitration in the Superior Court. Joulé requested the court to declare that the agreement was valid and binding on Simmons; that Simmons was required to submit to arbitration any claim against Joulé based on the facts alleged in her MCAD complaint; and that Simmons was precluded from acting as a litigant or party in any MCAD proceeding against Joulé. Simmons opposed the motion to compel arbitration, arguing that the arbitration provision in the agreement was unconscionable and did not unmistakably cover discrimination claims; and that in any event, her MCAD complaint or charge could proceed and she was entitled to “participate in the proceeding as the complainant.” The MCAD thereafter filed an emergency motion to intervene that was allowed by a Superior Court judge. After a hearing, a different Superior Court judge (motion judge) accepted the MCAD’s argument that its authority to conduct an investigation and adjudication of Simmons’s claim of discrimination was not affected by the parties’ agreement to arbitrate, and ordered that Joulé’s motion to compel arbitration be denied, that the Superior Court action be stayed pending resolution of the MCAD’s proceeding, and that the arbitration provision in the employment agreement did not preclude Simmons from participating as a party in the pending MCAD matter. Joulé appealed from the motion judge’s order pursuant to G. L. c. 251, § 18 (a) (1). We granted the applications for direct appellate review filed by Simmons and the MCAD.

a. Effect of the employment agreement’s arbitration provision on the MCAD. We consider first the effect of the arbitration provision on the MCAD’s ability to pursue its investigation and resolution of Simmons’s MCAD complaint. “The MCAD was established to enforce the Commonwealth’s antidiscrimination laws.” Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 563, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm’n Against Discrimination, 543 U.S. 979 (2004) (Stonehill College). The MCAD has the power to investigate claims of discrimination on its own, but also has the authority — and generally follows this course — to investigate and pursue complaints filed by individuals. See G. L. c. 151B, § 5. In the latter circumstance, although the complaint is filed by the individual, the agency proceeds in its own name. See Stonehill College, supra (in proceeding under G. L. c. 151B, § 5, “it is the MCAD, and not the complainant, that prosecutes the discrimination claim”).

We review briefly the MCAD’s procedure in investigating such complaints. See generally G. L. c. 151B, § 5. Any individual alleging discrimination in employment (or otherwise), or the Attorney General, may file a complaint with the MCAD. 804 Code Mass. Regs. § 1.10(1) (1999). The chairperson of the MCAD then designates a single commissioner to investigate the complaint promptly. 804 Code Mass. Regs. § 1.10. If the investigating commissioner finds no probable cause for crediting the allegations of the complaint, the commissioner issues a lack of probable cause finding and dismisses the complaint. 804 Code Mass. Regs. § 1.15(7)(b) (2008). If, however, the commissioner determines that probable cause does exist for crediting the allegations, he or she issues a probable cause finding. Id. At that point, the investigating commissioner endeavors to “eliminate the unlawful practice complained of through conference, conciliation and persuasion.” 804 Code Mass. Regs. § 1.18 (2005). If conciliation is unsuccessful it may be terminated, see 804 Code Mass. Regs. § 1.18(1)(d), and if the investigating commissioner determines that the public interest requires a certification of issues to public hearing, the commissioner issues a complaint in the name of the MCAD. 804 Code Mass. Regs. § 1.20(3) (2004). Such a public hearing is conducted by an MCAD commissioner other than the investigating commissioner, or by a designated hearing officer, or by the full commission. 804 Code Mass. Regs. § 1.21(1) (1999). The case is prosecuted by an MCAD attorney or other staff member, or in some instances by the complainant’s attorney whom the MCAD has designated its agent for the purpose. 804 Code Mass. Regs. § 1.09(5)(a), (b) (1999). A complainant may be permitted to intervene as a party in the case, in the commissioner’s discretion, and also be allowed to testify at the hearing. 804 Code Mass. Regs. § 1.20(4) (2004). If, after the hearing, the MCAD finds that the respondent employer has engaged in an unlawful practice as defined in the statute, the MCAD may require the respondent to “cease and desist from such unlawful practice,” and may grant relief specific to the complaining individual such as “hiring, reinstatement or upgrading of [the] employee[], with or without back pay . . . as, in the judgment of the [MCAD], will effectuate the purposes of this chapter.” G. L. c. 151B, § 5. See 804 Code Mass. Regs. § 1.22 (1999).

Under both Federal and Massachusetts arbitration statutes, it is clear that parties can agree to arbitrate claims of employment discrimination. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-27 (1991); Warfield, 454 Mass. at 395-396; Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 17-21 (1st Cir. 1999). By its express terms, the arbitration provision in Simmons’s employment agreement is governed both by the Massachusetts Arbitration Act, G. L. c. 251, § 2 (MAA), and by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (FAA). For agreements governed by the FAA, the statute’s presumption of arbitrability means that “in applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [FAA] . . . due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration” (citation omitted). Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 475-476 (1989). In Warfield, supra at 398, we acknowledged this point, but also held that, in view of the strong public policy against discrimination in employment, any agreement to arbitrate claims of discrimination must be stated clearly and unmistakably.

Even where there is a clear and unmistakable provision in an employment agreement requiring arbitration of discrimination claims, however, it would not affect the MCAD’s authority under G. L. c. 151B, § 5. “The FAA directs courts to place arbitration agreements on equal footing with other contracts, but it ‘does not require parties to arbitrate when they have not agreed to do so’. . . . ‘Arbitration under the [FAA] is a matter of consent, not coercion.'” EEOC v. Waffle House, Inc., 534 U.S. 279, 293, 294 (2002) (Waffle House), quoting Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. at 478, 479. The MCAD is not a party to the employment agreement at issue here, has not agreed to arbitration of Simmons’s MCAD complaint, and cannot be bound by the agreement’s arbitration provision. “[T]he proarbitration policy goals of the FAA do not require the agency to relinquish its statutory authority if it has not agreed to do so.” Waffle House, supra at 294. Accordingly, assuming the validity of the agreement’s arbitration provision,8 nothing in it precludes the MCAD from proceeding with its investigation and resolution of Simmons’s discrimination complaint — including, if the evidence warrants, granting relief specific to Simmons.

This conclusion is consistent with, and advances, the broad statutory responsibility and authority of the MCAD to investigate and remedy instances of discrimination in the Commonwealth. See Stonehill College, 441 Mass. at 562-563, and cases cited (“While the main object of a judicial proceeding under [G. L. c. 151B,] § 9[,] is to recover damages for the individual victim of unlawful discrimination, . . . the primary purpose of an administrative proceeding before the MCAD is to vindicate the public’s interest in reducing discrimination in the workplace by deterring, and punishing, instances of discrimination by employers against employees” [citation omitted]). See also Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 534 (2001), quoting Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515, 523 (1990) (“the MCAD ‘has been charged with the task of combating discrimination in the Commonwealth'”); College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 170 (1987) (“commission is given broad authority to remedy discrimination”); 804 Code Mass. Regs. § 1.13(4) (1999) (“No waiver agreement signed by any individual shall affect the [MCAD’s] right and statutory duty to enforce [ ] G. L. c. 151B . . . or to investigate any complaint filed before it”). The United States Supreme Court reached the same result in the Waffle House case where an employee alleging handicap discrimination declined to initiate arbitration proceedings mandated by his employment agreement, but instead timely filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) under Title VII. Waffle House, 534 U.S. at 283, 285. The Court concluded that the EEOC was authorized to bring its own enforcement action against the employer, notwithstanding the arbitration agreement between the employer and employee. Id. at 291-292, 296. It further stated that “once a charge is filed . . . the EEOC is in command of the process. . . . Absent textual support for a contrary view, it is the public agency’s province — not that of the court — to determine whether public resources should be committed to the recovery of victim-specific relief.” Id. at 291-292.9,10

Joulé appears to agree both that the MCAD is empowered and entitled to pursue investigation of Simmons’s discrimination complaint under G. L. c. 151B, § 5, and also that nothing in the arbitration provision of the parties’ employment agreement does, or could, preclude Simmons from filing a complaint with the MCAD.11 Joulé argues, however, that beyond filing a complaint with the MCAD, under the arbitration provision, Simmons is barred from being a litigant or party to the MCAD proceeding, and that the motion judge erred in ruling otherwise.12 Again, if the arbitration provision in Simmons’s employment agreement is valid (see Part 2 [b], infra), we would agree. When a complainant files a request to intervene, see 804 Code Mass. Regs. § 1.20(4), she must certify her “allegations of discrimination.” 804 Code Mass. Regs. § 1.20(3)(a) (2004). Thus, in essence, the complainant is required to advance a claim of discrimination in her own name. Allowing Simmons to seek to intervene as a party in the MCAD proceeding and to assert directly her individual claim of discrimination would contravene the requirement of the arbitration provision that she resolve her own disputes with Joulé through arbitration. The question whether Simmons may participate in the MCAD proceeding is a different matter. Nothing in the arbitration provision prevents her from testifying before the MCAD, see G. L. c. 151B, § 5, or from “provid[ing] information, materials or responses to [Joulé’s] submissions which are necessary for investigation of the case” to obviate administrative foreclosure in accordance with 804 Code Mass. Regs. § 1.15(5)(b) (1999).

b. Stay of court proceedings. It is Joulé’s position that the motion judge erred in granting the stay of further proceedings in its Superior Court action because, in accordance with Warfield, the terms of the arbitration provision are clear and unmistakable, and Simmons lacks any ground sufficient to revoke her agreement to arbitrate. See Warfield, 454 Mass. at 398. We agree that the stay should not have been granted, but for different reasons.

The motion judge assumed in effect that the arbitration provision was valid and, by staying Joulé’s court action until the MCAD concluded its proceeding, appears to have adopted the premise advanced by the MCAD, namely, that the agency’s proceeding takes precedence over any arbitration. However, “when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA.” Preston v. Ferrer, 552 U.S. 346, 349-350 (2008). In staying further proceedings in Joulé’s action to enforce the parties’ agreement to arbitrate, the motion judge in effect placed primary jurisdiction over Simmons’s discrimination based claims in the MCAD. This was error. If an employer and employee enter into a valid and sufficiently clear agreement to arbitrate any and all disputes relating to discrimination, then the party seeking arbitration of such a dispute is entitled to have the agreement enforced. See Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844-849 (2007) (arbitration provision enforced where dispute “falls squarely” under that provision). Cf. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. at 23, 35 (employee’s age discrimination claim can be subjected to compulsory arbitration pursuant to arbitration provision in mandated employment-related agreement signed by employee). For the reasons previously discussed, if, as in this case, the MCAD were then pursuing an investigation of the discrimination claim, the agency could proceed notwithstanding the arbitration provision in the parties’ agreement, see Waffle House, 534 U.S. at 291-292, and there is no legal bar to having an arbitration and the MCAD proceeding continue concurrently, on parallel tracks.13

In sum, Joulé would appear entitled to compel arbitration of a dispute with Simmons over her claims of employment discrimination if the agreement’s arbitration provision is valid and meets the “clear and unmistakable” requirements of Warfield.14 Accordingly, the motion judge should have considered the merits of Simmons’s challenge to the validity of the agreement’s arbitration provision, namely, that its arbitration provision was unconscionable and therefore unenforceable.15 On remand, this challenge must be resolved.16 If Simmons’s claim is upheld, then, obviously, arbitration cannot be ordered, and dismissal of Joulé’s complaint would be in order. But if Simmons does not prevail on her challenge, then Joulé’s motion to compel arbitration should be allowed.

3. Conclusion. The order of the Superior Court denying the motion to compel arbitration is vacated and the case is remanded to the Superior Court for proceedings consistent with this opinion.

3Joulé Technical Staffing, Inc., is a corporation organized under the laws of New Jersey. It is a subsidiary of Joulé, Inc., also a corporation organized under the laws of New Jersey. John G. Wellman is president of Joulé, Inc. Doing business as CM Access, Joulé Technical Staffing, Inc., has an office in Boston. Kristin Motta Zwickau and Kari Burke are the director and office manager, respectively, of that Boston office. The plaintiffs are referred to collectively in this opinion as Joulé. The defendant Randi Simmons worked at Joulé’s Boston office.

4We acknowledge the amicus briefs filed by the Attorney General on behalf of the Commonwealth, the Massachusetts Employment Lawyers Association; the New England Legal Foundation and Associated Industries of Massachusetts; the Massachusetts Academy of Trial Attorneys; and the American Civil Liberties Union of Massachusetts, together with Charles Hamilton Houston Institute for Race and Justice, Fair Employment Project, Inc.; Gay and Lesbian Advocates & Defenders, Greater Boston Civil Rights Coalition; Greater Boston Legal Services Corporation (on its own behalf and on behalf of the Chelsea Collaborative, the Chinese Progressive Association, the Massachusetts Coalition for Occupational Safety and Health, and Metrowest Immigrant Worker Center); Jewish Alliance for Law and Social Action; Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association; League of United Latin American Citizens-Massachusetts; Massachusetts AFL-CIO; Massachusetts Law Reform Institute; Massachusetts Transgender Political Coalition, National Lawyers Guild, Massachusetts Chapter; Union of Minority Neighborhoods, and joined by the Disability Law Center and the Massachusetts Chapter of the National Organization of Women.

5The facts summarized here are taken from the complaint to enforce the arbitration agreement and accompanying affidavits that Joulé filed in the Superior Court, Joulé’s motion to enforce the arbitration agreement and the accompanying affidavit of Zwickau, Simmons’s opposition to Joulé’s motion to enforce the arbitration provision in Simmons’s employment agreement (agreement) and Simmons’s own accompanying affidavit, and the arbitration provision itself.

6Joulé asserts that this occurred on Simmons’s first day of employment; Simmons represents that it occurred “[u]pon or shortly after” she began her employment.

“a. I hereby understand and agree that disputes between me and Joulé, its employees and/or its clients relating to my employment and/or termination of my employment (which includes without limitation, claims of discrimination, harassment, hostile work environment, retaliation, or other wrongful termination claims) will be resolved by binding arbitration through either the American Arbitration Association (‘AAA’) or the Judicial Arbitration and Mediation Service (‘JAMS’), and by the relevant Joulé Employment Dispute Rules and Procedure in effect at the time of filing the arbitration claim. I understand that my agreement to arbitrate such disputes includes without limitation any disputes or claims arising under the common law or various statutes, including without limitation, termination of my employment by Joulé, discrimination claims, whether under federal, state or local law, regulation or ordinance, claims under any public policy, contract or tort, or under common law . . . . My agreement to arbitrate does not however, apply to any claims for Worker[s’] Compensation or Unemployment Insurance Benefits or any claims involving theft, fraud or other actions against me, which might give rise to criminal penalties, or any type of action where the sole or primary remedy is declaratory and/or injunctive relief against me.

“b. I understand and acknowledge that my agreement to submit all applicable disputes as described above to binding arbitration means that with respect to all such claims I am knowingly, and voluntarily waiving my right to a trial by jury and that I am doing so free of any duress or coercion. . . .”

9In Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390 (2009) (Warfield), we wrote that “[a]n agreement to arbitrate employment discrimination claims represents a limited waiver of rights under G. L. c. 151B. An employee who agrees to arbitrate such a claim of course does not forgo the substantive rights afforded by the statute . . . but does give up the substantial right to seek administrative or judicial remedies” (emphasis added). Id. at 398-399 n.13. The sole issue in Warfield was whether the employee and employer had specifically agreed to arbitrate claims of discrimination within the scope of protection afforded by G. L. c. 151B when they included a general arbitration clause in their employment agreement. See id. at 395-396. We concluded that the employee there had not so agreed. Id. at 402. To the extent that the highlighted language appearing in a footnote may suggest that an employee who has agreed to arbitrate a discrimination claim is precluded from filing a complaint with the MCAD under G. L. c. 151B, § 5, it is incorrect and we do not follow it. See EEOC v. Waffle House, Inc., 534 U.S. 279, 288-289, 291 (2002) (Waffle House).

10An argument has been advanced, and addressed by the parties and amici, that pursuant to G. L. c. 151B, § 5, the MCAD “adjudicates” complaints of discrimination brought by private complainants, and therefore, that the decision of the United States Supreme Court in Preston v. Ferrer, 552 U.S. 346 (2008) (Preston), controls the outcome here. We disagree. Preston involved a contract dispute between an entertainment industry attorney and his television performer client. Id. at 350. The parties’ contract contained an arbitration provision requiring arbitration of any dispute concerning, among others, the contract’s terms, breach, or validity. Id. The plaintiff attorney had sought arbitration of the dispute in question, but the defendant client brought suit in State court to enjoin arbitration, arguing that under the California Talent Agencies Act (TAA), the California Labor Commissioner had exclusive original jurisdiction over the matter. Id. at 350-351. The Supreme Court rejected the defendant’s claim, holding that “when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA.” Id. at 349-350. The point to emphasize, however, is that in Preston, the Court was considering who was to adjudicate the private parties’ dispute in the first instance, the arbitrator or the administrative agency. See id. at 358-359. The Court distinguished Waffle House, emphasizing that in that case, “the Court addressed the role of an agency, not as adjudicator but as prosecutor, pursuing an enforcement action in its own name.” Id. at 359. Indeed, the Court noted, “[e]nforcement of the parties’ arbitration agreement in this case does not displace any independent authority the Labor Commissioner may have to investigate and rectify violations of the TAA.” Id. at 359 n.7. Similarly, as we have discussed in the text, the MCAD, proceeding under G. L. c. 151B, § 5, is prosecuting a claim in its own name, and rectifying violations of G. L. c. 151B in the public

interest. See Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 563, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm’n Against Discrimination, 543 U.S. 979 (2004). It is beside the point that the prosecution takes place not before a judge in a court but in the administrative forum in the first instance.

11In its brief, Joulé requests that we vacate the Superior Court order and direct on remand that Simmons be ordered to dismiss her MCAD complaint. However, during oral argument before this court Joulé agreed that, notwithstanding the arbitration provision in the agreement, Simmons was entitled to file a complaint with the MCAD.

12The judge’s order states that “[t]he Arbitration Agreement, to the extent enforceable, does not preclude Simmons from being a party to the MCAD action.”

13As other courts have noted, there is an inefficiency inherent in having the same core issues be the subject of simultaneous but separate proceedings in two different forums. See, e.g., Marie v. Allied Home Mtge. Corp., 402 F.3d 1, 16 (1st Cir. 2005). Cf. Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217 (1985) (“the Arbitration Act requires district courts to compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums”). But if an employer decides to initiate arbitration while a related proceeding before the MCAD is ongoing, the decision whether to stay the arbitration proceeding pending the outcome of the MCAD case would appear to be up to the arbitrator. See Marie v. Allied Home Mtge. Corp., supra at 16 nn.11, 13.

Another question raised by such simultaneous proceedings is the impact a settlement of the arbitration or final arbitration award would have on the MCAD’s adjudication or on the type of relief the MCAD may order. See Waffle House, 534 U.S. at 297 (“It is an open question whether a settlement or arbitration judgment would affect the validity of the EEOC’s claim or the character of relief the EEOC may seek”). But, as the Supreme Court also stated, “it ‘goes without saying that the courts can

and should preclude double recovery by an individual.'” Id., quoting General Tel. Co. of the Northwest v. EEOC, 446 U.S. 318, 333 (1980).

14The record reflects that Simmons refused to pursue arbitration under the employment agreement, and she may take the position that she does not have any “disputes” with Joulé. But the arbitration provision provides that “disputes between [the employee] and Joulé” are to be resolved by arbitration; this language appears to enable Joulé itself to initiate arbitration if it considers there to be a dispute, notwithstanding Simmons’s position. The determination whether there is a dispute between the parties presumably would be a matter for the arbitrator. Cf. Massachusetts Highway Dep’t v. Perini Corp., 444 Mass. 366, 373 n.10 (2005) (interpretive assumption “that an agreement that does not expressly empower the arbitrator to decide issues of the agreement’s interpretation leaves those issues to the courts . . . does not survive Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 [2002]”); Plymouth-Carver Regional Sch. Dist. v. J. Farmer & Co., 407 Mass. 1006, 1007 (1990), quoting Morceau v. Gould-National Batteries, Inc., 344 Mass. 120, 124 (1962) (“question of interpretation of the agreement is for the arbitrator”).

15Simmons contended below — and argues here — that in addition to being unconscionable, the arbitration provision does not satisfy the specificity requirements of Warfield, 454 Mass. at 398, and therefore does not cover her discrimination claims in any event. The argument fails. The arbitration provision, quoted in full, see note 7, supra, provides in pertinent part that “disputes between me [Simmons] and Joule, its employees and/or its clients relating to my employment and/or termination of my employment (which includes without limitation, claims of discrimination, harassment, hostile work environment, retaliation, or other wrongful termination claims) will be resolved by binding arbitration” (emphasis added). This language makes it “clear and unmistakable,” see Warfield, supra, that the arbitration provision applies to employment discrimination claims. We do not agree with Simmons that the reference to waiver of the right to a jury trial in the second paragraph of

the arbitration provision (see note 7, supra) renders ambiguous the language quoted here from the provision’s first paragraph. Finally, we understand Simmons’s complaints about the specific arbitration procedures that Joule has prescribed and the difficulty in locating a description of them as relevant to Simmons’s claim of unconscionability, not to whether the arbitration provision meets the Warfield standard.

16In challenging the arbitration provision as unconscionable, Simmons raises a host of claims. Some of these claims, such as that Simmons was forced to sign the employment agreement with the arbitration provision included after she began employment and had turned down other employment opportunities; and that the procedures governing arbitration are hidden in other documents unilaterally subject to change (see note 14, supra), do relate to the issue of unconscionability. Others, however, appear to challenge the conclusion reached by the United States Supreme Court and this court, as stated in Warfield, 454 Mass. at 399-401, that claims of employment discrimination can be subject to private arbitration. We leave for the Superior Court judge on remand the separation of these claims and their subsequent resolution.

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Indictments found and returned in the Superior Court Department on June 6, 2007.

A pretrial motion to suppress evidence was heard by C. Brian McDonald, J.

An application for leave to prosecute an interlocutory appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeals was reported by him to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Adriana Contartese for Gerald Eddington.

Thomas F. McGuire for Jessica Cappas.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

IRELAND, J. The defendants, Gerald Eddington and Jessica Cappas, were indicted on multiple firearm offenses,2 and Eddington also was indicted on a charge of operating a motor vehicle with a suspended license, in violation of G. L. c. 90, § 23. After an evidentiary hearing, a Superior Court judge allowed Eddington’s motion to suppress3 the firearm and ammunition recovered by police during an inventory search of an automobile driven by Eddington, in which Cappas was a passenger, on the ground that the firearm and ammunition were obtained as a result of an unlawful impoundment.4,5 A single justice of this court granted the Commonwealth leave to pursue interlocutory appeals from the judge’s orders, see note 5, supra, in the Appeals Court, see Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996). The Appeals Court reversed the orders of suppression. Commonwealth v. Eddington, 76 Mass. App. Ct. 173, 179 (2010). We granted Eddington’s application for further appellate review. Because we conclude that the impoundment was justified in the circumstances of this case, we reverse the allowance of the motion to suppress the firearm and ammunition.

On April 29, 2007, at approximately 4:15 A.M., two officers of the Springfield police department, David Martin and Matthew Vickery, undertook surveillance (in a marked police cruiser) of an “after-hours” party at a residence on the corner of Colonial Avenue and Wilbraham Road. The officers were familiar with the residence because it was the scene of regular parties that frequently involved criminal activities that required their response, including fighting, shootings, two murders, public drinking outside the residence, and illegal parking.

Shortly after arriving at the residence, the officers saw the defendants leave the party carrying what appeared to be bottles of beer. The defendants walked across Wilbraham Road and over to a parking lot adjacent to a church. They got into an automobile, taking their bottles with them, and drove out of the parking lot. They turned left on Wilbraham Road, and then turned left on Suffolk Street. The officers followed and signaled for them to stop by using their blue lights and siren. The automobile pulled over promptly and stopped alongside a curb on the side of the street.7 This location was a short distance from the party the defendants had attended.

The officers approached the automobile to investigate the possibility of the presence of open containers of alcoholic beverages. Their suspicions were confirmed as soon as Officer Martin looked inside the automobile while asking Eddington, who was driving, for his license and registration. Two opened bottles of beer were in plain view inside the cup holders on the console between the front seats.

Eddington told the officers that he did not have a license, and he did not have the automobile’s registration. Officer Martin started preparing citations for the defendants for having open containers of beer in the automobile. He then obtained confirmation that Eddington’s license had been suspended. Eddington was removed from the automobile and placed under arrest for operating a motor vehicle with a suspended license. The officers determined that neither Eddington nor Cappas owned the automobile. Rather, from a check of the automobile’s registration plate number, the officers learned that the automobile was registered to a Jessica Rodriguez.

Because it was about 4:30 A.M., the officers decided not to contact Rodriguez to have her retrieve her automobile. The officers believed Suffolk Street (near Wilbraham Road) to be a “high crime” area, and were concerned that if left parked at the curb, the automobile would be vulnerable to theft or damage.8 Consequently, they decided to impound the automobile and arranged for it to be towed. Cappas was ordered out of the automobile. An inventory search was performed pursuant to the written policy of the department, and a loaded revolver was recovered under the front passenger seat.9 Cappas was arrested.

As relevant here, the judge suppressed the firearm and ammunition, concluding that the officers’ decision to impound the automobile was not justified. Because the automobile was lawfully parked, impoundment could only be justified if there was a risk of theft or threat of vandalism, which the judge determined that the Commonwealth did not show. Specifically, the judge explained that the officers’ testimony that the vicinity of the stop was a “high crime” area was insufficient to establish a likelihood of theft or vandalism because “[t]he nature of the crimes” that rendered the location of the stop a high crime area was not described.10

The Appeals Court reversed, concluding that the case falls under “the long-standing rule that impoundment of a car pulled over may be justified by specific evidence of a danger that the car left unattended might be vandalized or stolen when that danger is combined with a need to protect the police from false claims of loss.” Commonwealth v. Eddington, 76 Mass. App. Ct. 173, 177 (2010), citing Commonwealth v. Ellerbe, 430 Mass. 769, 775 (2000). The Appeals Court found the following factors determinative: the automobile was parked in a location dictated by the circumstances of the stop and not by the driver’s choice; the location of the stop was a “high crime” area; the defendants were not able to move the automobile; the owner was not present; it was impracticable, on account of the time at which the stop occurred, to contact the owner; and the police were not constitutionally obligated to contact the owner. Commonwealth v. Eddington, supra at 177-178. The Appeals Court explained that these factors demonstrated “a sufficient risk that the car might be vandalized or stolen so that, when combined with the risk of false claims for loss against the police, the impoundment of the car, pursuant to a constitutionally adequate police policy, was reasonable and thus permissible under the Fourth Amendment.” Id. at 178.

2. Further appellate review. In this case, Cappas’s appellate counsel, unlike Eddington’s appellate counsel, did not file an application for further appellate review. We have stated that, in civil cases involving multiple parties, “we will not consider the arguments of a wholly unsuccessful party who did not seek further appellate review.” Bradford v. Baystate Med. Ctr., 415 Mass. 202, 205 (1993). We noted that this principle “is consistent with our rule that one who does not appeal from a judgment is not entitled to more favorable treatment on appeal than that expressed in the judgment.” Id. at 205 n.4. In addition, the principle serves to provide fair notice to the Commonwealth of what issues and what defendants will be before us. It also enables the clerk of the Appeals Court to satisfy the prescribed duties concerning the issuance of rescripts of the Appeals Court. See Mass. R. A. P. 23, as appearing in 367 Mass. 921 (1975) (“The timely filing . . . of an application for further appellate review will stay the rescript until disposition of the . . . application . . . . If the [application] is denied, the rescript shall issue forthwith unless the appellate court or a single justice orders otherwise. If an application for further appellate review is granted the rescript of the Appeals Court shall not issue to the lower court”). We thus adopt, on and after the date of this opinion, the rule set forth in Bradford v. Baystate Med. Ctr., supra at 205, to criminal cases, requiring each defendant in a multiple defendant case (whether consolidated or not) who seeks further appellate review to file a timely application. In view of our decision in this case, and the procedural posture below (the trial court was notified that an application for further appellate review was filed in connection with the Appeals Court case and it appears that no further proceedings in the trial court were conducted), Cappas will not be subject to the new rule. Rather, our decision will apply to both Eddington’s and Cappas’s cases.

3. Propriety of the impoundment. On a motion to suppress evidence seized during a warrantless search, such as an inventory search as was done here, it is the Commonwealth’s burden to establish that the evidence was lawfully obtained. Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974). “Under both the Federal and Massachusetts Constitutions, analysis of the legitimacy of an inventory search of an impounded vehicle involves two related, but distinct, inquiries: (1) whether the impoundment of the vehicle leading to the search meets constitutional strictures, and (2) whether the conduct and scope of the search itself meets those strictures.”11Commonwealth v. Ellerbe, 430 Mass. 769, 772-773 (2000). The second aspect of the analysis is not at issue in this case; we focus on the propriety of the impoundment. See Commonwealth v. Garcia, 409 Mass. 675, 678 (1991) (concerning inventory search, “the propriety of the impoundment of the vehicle is a threshold issue in determining the lawfulness of the inventory search”).

“The impoundment of a vehicle for noninvestigatory reasons is generally justified if supported by public safety concerns or by the danger of theft or vandalism to a vehicle left unattended.” Commonwealth v. Brinson, 440 Mass. 609, 612 (2003), quoting Commonwealth v. Daley, 423 Mass. 747, 750 (1996). There have been other circumstances where impoundment has been justified, such as where a vehicle was stopped on private property and the only occupant of the vehicle was arrested, leaving it “driverless,” Commonwealth v. Dunn, 34 Mass. App. Ct. 702, 706 (1993); and where the vehicle stopped did not possess valid registration plates, Commonwealth v. Horton, 63 Mass. App. Ct. 571, 573, 577 (2005). The decisions demonstrate that our determinations are fact driven, with the overriding concern being the guiding touchstone of “[r]easonableness.” Commonwealth v. Ellerbe, supra at 776. It must also not be overlooked that there are three separate interests protected by permitting warrantless inventory searches: “the protection of the vehicle and its contents; the protection of the police and the tow company from false charges; and the protection of the public from the dangerous items which might be in the vehicle,” which includes the interior of a locked trunk that is “certainly not invulnerable to vandalism or theft.” Commonwealth v. Garcia, supra at 682.

In this case, the automobile was lawfully parked and did not pose a public safety risk. Relying on Commonwealth v. Brinson, supra, Eddington contends that, because the automobile was lawfully parked, the officers should have left it. We held that “the government may not impound and conduct an inventory search of a car based on the arrest of the owner, where the car was lawfully parked in a privately owned parking lot and there was no evidence that the car constituted a safety hazard or was at risk of theft or vandalism.” Id. at 610. In the Brinson case, however, the owner of the automobile inventoried was present at the stop and earlier had selected the parking lot location at which his automobile was parked. Id. at 610-611. Here, the action of police in signaling for the automobile to pull over dictated the location of the stop (along the curb of a public street) and the owner of the automobile, Rodriguez, was not present at the scene to express a preference on the vehicle’s disposition. In accordance with our past precedent, the police were not constitutionally obligated to contact her. See Commonwealth v. Caceres, 413 Mass. 749, 751-752 n.2 (1992) (we have said in dictum “if the owner of the vehicle is present and makes such a proposal [for an alternative disposition of the automobile], this principle [considering the alternate disposition] seems appropriate” [emphasis added]).12 See also Commonwealth v. Ellerbe, supra at 776 (“Reasonableness did not require police officers to guard the vehicle or to wait with the unlicensed passenger until a licensed driver could be produced to take control of it”); Commonwealth v. Henley, 63 Mass. App. Ct. 1, 6 (2005) (police had no constitutional obligation to contact, in early morning hour, owner of vehicle, which was rental company, or authorized driver under rental agreement who was not present at stop). Although we need not examine the reason of the police officers for not attempting to contact Rodriguez, the reason for not doing so — the early morning hour — provided a sound basis for their decision. We also find significant the facts that Eddington was unable to operate the automobile because he had been placed under arrest (for operating a motor vehicle with a suspended license) and Cappas had been drinking and was not known to be authorized to drive the automobile. See Coleman v. State, 668 P.2d 1126, 1130 (Okla. Crim. App. 1983), cert. denied, 464 U.S. 1073 (1984) (impoundment justified where driver placed in custody and passenger had been observed drinking beer). Cf. Commonwealth v. Ellerbe, supra at 775-776 (impoundment justified in part based on fact that driver was arrested and passenger had no license with her); Commonwealth v. Daley, supra at 750 n.4 (impoundment justified in part because vehicle could not be turned over to third person). Nor was the vehicle’s registration produced. See G. L. c. 90, § 11 (“Every person operating a motor vehicle shall have the certificate of registration for the vehicle . . . and his license to operate, upon his person or in the vehicle, in some easily accessible place . . .”). Cf. Commonwealth v. Daley, supra at 750 (impoundment justified in part because vehicle was unregistered, uninsured, and had attached plates belonging to another vehicle). All these reasons, together with the interests protected by conducting an inventory search13 as well as the “the proposition that an officer’s judgment in the matter is to be tested by what reasonably appeared to him at the time, rather than to us in long afterthought,” Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 415 (1996), support impoundment.14 We thus conclude that the police acted reasonably in deciding to impound the automobile in the circumstances.

4. Conclusion. The orders allowing the motion to suppress as to Eddington and Cappas are reversed, and orders denying the motion to suppress are to enter. The cases are remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

GANTS, J. (concurring). I agree with the court that, under our controlling case law, the impoundment of the vehicle in this case was reasonable because the owner was not a driver or passenger in the vehicle, the driver could not produce the vehicle’s registration, and it was not clear that the driver had the owner’s authorization. Therefore, even though public safety was not at risk by leaving the vehicle locked on the public street where it was lawfully parked at the time of the stop, and even though there was no reason to believe that the vehicle contained dangerous or expensive personal property, and even though the vehicle was not parked in a high crime area where there was an escalated risk of theft or vandalism, it was still reasonable to impound the vehicle because there was no one present at the scene who plainly had authority over the vehicle to propose to the police a reasonable alternative to impoundment. Because impoundment was reasonable, an inventory search conducted in accordance with written police procedures was permissible to protect the police and tow company from false claims of theft or property damage. I write separately for two reasons.

First, in Commonwealth v. Wilson, 389 Mass. 115, 117 (1983), we declared that inventory searches are reasonable “where they are conducted in accord with standard procedures and are not a pretext, because they protect the defendant’s property and ensure the police against later claims of theft or lost property.” With respect to motor vehicles, the standard written procedures we have required for inventory searches focus solely on the conduct of the search of the motor vehicle, not on whether the motor vehicle itself should be impounded and made the subject of an inventory search. See Commonwealth v. Daley, 423 Mass. 747, 749-751 (1996). If we wish effectively to prevent motor vehicle inventory searches that are purely pretext, that is, searches that are conducted not because the police wish to protect the defendant’s property but because the police wish, for investigative purposes, to search the motor vehicle and lack the probable cause needed lawfully to do so, it is necessary to require the police to comply with standard written procedures as to whether to conduct an inventory search, not merely as to how such an inventory search should be conducted.

The standard written procedures need not be complex or difficult. They need only, for instance, provide that where the police are considering impoundment of a motor vehicle whose driver is its owner or a person clearly authorized by the owner to drive the vehicle, the police must (1) inform the driver that the vehicle will be taken to a police facility or private storage facility for safekeeping unless the driver directs the officer to dispose of it in some lawful manner, and (2) comply with an alternative disposition if that alternative is reasonable. The written procedures need not address which alternative dispositions are reasonable in the various circumstances; that is best left to the governing case law.

This procedural standard is derived from, but narrower than, the standard for noninvestigatory vehicle impoundment proposed by perhaps the best known scholar regarding the law of search and seizure, Wayne R. LaFave, in his treatise on the Fourth Amendment to the United States Constitution. See 3 W.R. LaFave, Search and Seizure § 7.3(c), at 621 (4th ed. 2004).15 See also LaFave, Controlling Discretion by Administrative Regulations: The Use, Misuse, and Nonuse of Police Rules and Policies in Fourth Amendment Adjudication, 89 Mich. L. Rev. 442, 446 & n.31 (1990).

A similar standard is set forth in Rule 603 of the Model Rules for Law Enforcement, Searches, Seizures and Inventories of Motor Vehicles at 63 (1974) (Model Rules), prepared by the Project on Law Enforcement Policy and Rulemaking, which provides that “[w]hen a person is arrested in or around a vehicle which he owns or has been authorized to use, . . . [he] shall be advised that his vehicle will be taken to a police facility or private storage facility for safekeeping unless he directs the officer to dispose of it in some other lawful manner.”16 The Model Rules were approved by the project advisory board, which consisted of representatives from police departments in several large United States cities; Dade County, Florida; and the District of Columbia.

While “we have not addressed whether the State Constitution imposes an obligation on the police to consider practical alternatives to impoundment before an inventory search can be reasonable,” Commonwealth v. Daley, supra at 750, courts in other States consider whether a driver proposed a reasonable alternative disposition in determining the reasonableness of a vehicle impoundment. See, e.g., State v. Gauster, 752 N.W.2d 496, 508 (Minn. 2008) (police should permit driver to make reasonable alternative arrangements where he makes specific request to do so); State v. Lunsford, 655 S.W.2d 921, 924 (Tenn. 1983) (based on circumstances, police should permit driver’s reasonable alternative to impoundment); State v. Lizee, 173 Vt. 473, 475 (2001) (“In determining whether impoundment was necessary, courts have focused on whether reasonable alternatives were available, such as whether . . . the driver could make alternative arrangements . . .”); State v. Perry, 174 W. Va. 212, 217 (1984), and cases cited (“Courts have held that a driver must be given a reasonable opportunity to make some alternative disposition of the vehicle before the police may impound it for the sole purpose of protecting it and its contents from theft or damage”).

Second, I fear that the court’s opinion may be misunderstood to mean that impoundment of a vehicle is reasonable, regardless of the circumstances, if the owner of the vehicle is not present in the vehicle at the time of arrest. Under the facts of this case, based on the information known or easily ascertainable by the police at the time of impoundment, no one in the vehicle was the owner or clearly authorized by the owner to drive the vehicle. We have yet to hold that only the owner of the vehicle may propose an alternative disposition to impoundment, and I do not believe we do so here. In dictum in a footnote in Commonwealth v. Caceres, 413 Mass. 749 (1992), we said that LaFave’s suggestion that, “if the driver asks that his car be turned over to a passenger, this should be done if the passenger is not under arrest or otherwise incapacitated and displays a valid operator’s license,” “seems appropriate” if the owner of the vehicle is present. Id. at 751-752 n.2, quoting 3 W.R. LaFave, Search and Seizure § 7.3(c), at 92 (2d ed. 1987). We did not discuss there whether a driver who is clearly authorized by the owner to drive the vehicle (and park it) may propose a reasonable alternative disposition.

2 Gerald Eddington was indicted on one charge of unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a), after having been convicted previously of one violent crime and two serious drug offenses, G. L. c. 269, § 10G (c); one charge of unlawful possession of ammunition without a firearm identification card, in violation of G. L. c. 269, § 10 (h), after having been convicted previously of one violent crime and two serious drug offenses, G. L. c. 269, § 10G (c); one charge of unlawful possession of a loaded firearm, in violation of G. L. c. 269, § 10 (n); and one charge of operating a motor vehicle after his license had been suspended, G. L. c. 90, § 23. Jessica Cappas was indicted on one charge of unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a); one charge of unlawful possession of ammunition without a firearm identification card, in violation of G. L. c. 269, § 10 (h); and one charge of unlawful possession of a loaded firearm, in violation of G. L. c. 269, § 10 (n).

3 In his motion to suppress, Eddington claimed that his rights under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights were violated. He did not argue that art. 14 affords him any greater protection than the Fourth Amendment.

4 The judge denied Eddington’s motion to suppress insofar as it pertained to the suppression of open bottles of beer. We have not been asked to review the propriety of this action.

5 Cappas was permitted to join Eddington’s motion to suppress, and the judge entered an order as to her, allowing suppression of the firearm and ammunition and denying suppression of the open bottles of beer.

6 We “supplement a judge’s finding of facts if the evidence is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness’s testimony.” Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). Here, the defendants do not dispute the judge’s factual findings, and it is apparent from the record that the judge implicitly credited the testimony of Officers David Martin and Matthew Vickery, who provided the only testimony at the evidentiary hearing on the motion to suppress.

8 Officer Martin testified that they did not leave the automobile parked on the street because it was a “high-crime area and there [were] valuable items inside the motor vehicle.” However, the inventory took place after the decision to impound, and, when making the decision to impound, the officers were unaware of the contents of the automobile’s trunk. See note 9, infra. Officer Martin also explained that, “to protect the department, to protect the vehicle’s owner, we towed the motor vehicle so no harm would come to it, that it wouldn’t be subjected to being stolen or broken into and the items being stolen.” Officer Martin added that the police generally “don’t have the luxury of waiting around for a registered owner to come to the scene. It ties up an officer . . . .”

9 Various items of stereo equipment, including a “speaker box” and an “amp,” were found in the trunk of the automobile. There is no evidence that the existence of this equipment was visible or made known to the officers prior to their decision to impound the automobile.

10 In his decision, the judge, based on his “personal familiarity with the neighborhood” in which the stop occurred, took notice of certain facts not in the record concerning the nature of the neighborhood that undercut Officer Martin’s testimony that it was a “high crime” area. We need not address the Commonwealth’s argument that this action by the judge was improper because we do not, in this case, place any emphasis on the nature of the neighborhood where the stop occurred. There was an absence of specific facts explaining why this particular location where Rodriguez’s automobile came to a stop was considered to be in a “high crime” area. See Commonwealth v. Johnson, 454 Mass. 159, 163 (2009) (“The term ‘high crime area’ is itself a general and conclusory term that should not be used to justify a stop or a frisk, or both, without requiring the articulation of specific facts demonstrating the reasonableness of the intrusion”). We caution that, to justify a decision to

impound, the police need more than the circumstance of a vehicle being stopped, and its driver arrested, in a “high crime” area.

11 Under both the Federal and State Constitutions inventory searches must be done in accordance with standard police operating procedures, and under art. 14, those standard procedures must be in writing. Commonwealth v. Ellerbe, 430 Mass. 769, 773 n.8 (2000), and cases cited. These requirements are not at issue in this case.

12 In Commonwealth v. Caceres, 413 Mass. 749, 751 n.1 (1992), we stated that “[i]t would seem reasonably clear that the failure to give a person an opportunity to make reasonable alternative arrangements for the vehicle would not invalidate an inventory search under Fourth Amendment principles.” We noted that “some State courts have indicated that the police must respond to a reasonable request for an alternative disposition of the vehicle [and] [o]thers have placed the burden on the police to initiate consideration of obvious reasonable alternatives.” Id., citing 3 W.R. LaFave, Search and Seizure § 7.3(c) (2d ed.

1987). In our view, adopting any per se rule whether such a rule applies to an owner or a driver contravenes the proper constitutional analysis — the touchstone of reasonableness that itself necessitates a case-by-case analysis that takes into account the numerous and varied situations in which decisions to impound are made. See Coolidge v. New Hampshire, 403 U.S. 443, 509-510 (1971) (Black, J., concurring and dissenting) (“The relevant test [whether the Fourth Amendment has been violated] is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must decided on its own facts”). See also Landry v. Attorney Gen., 429 Mass. 336, 348 (1999), and cases cited (Fourth Amendment violations occur only if search or seizure is unreasonable).

13 Because Rodriguez was not present at the stop, the police were not made aware of the existence of any valuables in the various compartments of the automobile, such as the trunk, that might be at risk of theft and thereby warranted safeguarding. While the police could not justify the impoundment by the presence of valuable property that they did not discover until after the inventory search had been conducted, it was not unreasonable for the police to consider the possibility that there might be valuables present inside the vehicle as a relevant factor in deciding to impound.

14 We underscore, in response to the concern expressed in Justice Gants’s concurring opinion, that we do not base our conclusion solely on the fact that the owner of the vehicle was not present at the time of the stop.

15 Professor LaFave proposes that the “arrested operator” should be asked to propose an alternative disposition of the vehicle, whereas I propose that the arrested operator be asked only if he is the owner or clearly has the owner’s authorization. See 3 W.R. LaFave, Search and Seizure § 7.3(c), at 621 (4th ed. 2004). I do not suggest that we impose a duty on the police to investigate the question of authorization where this is unclear.

16 “In any case where [the arrestee] requests that his vehicle be lawfully parked on a public street, he shall be required to make his request in writing.” Rule 603(B) of the Model Rules for Law Enforcement, Searches, Seizures and Inventories of Motor Vehicles at 63 (1974), prepared by the Project on Law Enforcement Policy and Rulemaking.